STATE OF MISSOURI ] COUNTY OF GREENE ]

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746]

My name is Paul Benton Weeks III. I am of majority age. I state the following, based upon my personal knowledge and belief:

1. I am an attorney in Springfield, Missouri. I graduated from the University of Virginia School of Law in 1981. I am a member of the Missouri Bar.

2. This affidavit stems from routine work I performed becoming familiar with a newly-assigned federal judge in the civil case of Murray et al. vs. Scott & Sevier et al. ("the B.A.S.S. case") (No. 94-F-1266-N), currently pending in the United States District Court for the Middle District of Alabama, Northern Division. I am one of plaintiff Murray's attorneys. The name of this federal judge is Mark Everett Fuller of Enterprise, Alabama. Mr. Fuller was appointed federal judge on August I, 2002, confinned by the U.S. Senate on November 14, 2002, and received his commission on November 26,2002.

3. This affidavit identifies clear evidence of criminal misconduct by Mr. Fuller - criminal acts which appear to have been committed by Mr. Fuller both before and after becoming a United States judge. The evidence of criminal wrongdoing identified in this affidavit implicates lying and perjury; criminal conspiracy and criminal attempt to defraud the Retirement System of Alabama (RSA) of approximately $330,000; and, misuse of the office of district attorney and federal judge in furtherance of a criminal conspiracy and criminal attempt to defraud. Mr. Fuller may have violated the federal criminal mail fraud statute, 18 U.S.C. § 1341. Mr. Fuller may have also misappropriated more than $70,000 in public funds while District Attorney for Alabama's 12th Judicial Circuit - in furtherance of a conspiracy and scheme to defraud the RSA. Finally, Mr. Fuller may have purposely obstructed the background investigation conducted by the U.S. Senate and the F.B.I. in connection with his judicial appointment.

4. Because this affidavit identifies evidence of misconduct by a federal judge which may have occurred in the Alabama counties of Montgomery, Coffee and/or Pike, copies of this affidavit and attached exhibits are being submitted to the following federal and state agencies, governmental bodies . and/or officials:

United States Department of Justice Public Integrity Section - Criminal Division 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

Hon. Eleanor (Ellen) Idelle Brooks District Attorney for the 15th Judicial Circuit Post Office Box 1667 Montgomery, Alabama 36102-1667

HoD. Gary L. McAliley District Attorney for the 12th Judicial Circuit Post Office Box 1102 Enterprise, Alabama 36331-1102

Hon. F. James Sensenbrenner U.S. House of Representatives - Committee on the Judiciary Chairman-Ranking Republican Member 2138 Rayburn HOB Washington, DC 20515

Hon. John Conyers, Jr. U.S. House of Representatives - Committee on the Judiciary Ranking Democratic Member 2138 Rayburn HOB Washington, DC 20515

Hon. Orrin G. Hatch U.S. Senate - Committee on the Judiciary Chairman-Ranking Republican Member 224 Dirksen Senate Office Building Washington, DC 20510

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Hon. Patrick J. Leahy U.S. Senate - Committee on the Judiciary Ranking Democratic Member 224 Dirksen Senate Office Building Washington, DC 20510

Eleventh Circuit Judicial Council 56 Forsyth St. N.W. Atlanta, GA 30303

Hon. William Harold Albritton, Chief Judge United States District Court for the Middle District of Alabama P.O. Box 629 · Montgomery, Alabama 36101

The Retirement System of Alabama 135 South Union Street Post Office Box 302150 Montgomery, AL 36130-2150

Affiant's Legal Background

5. I received my legal education and training at the University of Virginia School of Law in Charlottesville, Virginia. At UV A, I was first in my criminal law class - receiving the top grade in criminal law and an award for excellence in criminal law. While in law school, I also worked for a legal publisher, Michie Bobbs Merrill, updating the Criminal Code of Georgia. I also worked with UV A's criminal law clinic. During my legal career, I have worked with one of the world's leading authorities on white­collar crime, G. Robert (Bob) Blakey, chief author of the federal racketeering (RICO) laws and a law professor at Notre Dame School of Law. In sum, my legal education and training have given me certain skills in matters of criminal law - including detection and evaluation of criminal evidence.

6. In my civil practice, I have demonstrated accuracy in detecting and uncovering evidence of conduct contrary to law. In the seminal case of In Re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability

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Litigation, 55 F.3d 768 (3rd Cir. 1995), cert. denied sub nom., General Motors Corp. v. French et ai., 516 U.S. 824, 116 S.Ct. 88, 133 L.Ed.2d 45 (1995) ("GM Trucks"), I was one of several attorneys representing class­member objectors. However, I was the only attorney to piece together the fact that General Motors and the plaintiffs' class-action lawyers had entered into an improper fee agreement. On appeal, the United States Court of Appeals for the Third Circuit noted a "smoking gun" that supported my assertion that GM's fee agreement was contrary to law. 55 F.3d at 810 n. 27.

7. In GM Trucks, I was also the only attorney who contended that at least four federal appeals courts had misapplied Rule 23 of the Federal Rules of Civil Procedure by relaxing class-certification standards in proposed class­settlement cases. The Third Circuit agreed with my contention in a ruling central to the court's holding. 55 F.3d at 778, 797-799. The important class-action law I advocated in GM Trucks was subsequently adopted by the Supreme Court of the United States· in another case, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).

8. In GM Trucks, I was also the only attorney who contended that some federal district courts were incorrectly applying Rule 23 by failing to make specific findings of fact to support class· certifications. The Third Circuit expressly agreed with my contention - referring to my appellate brief in its opinion ("Brief of French Objectors") and using my contention as a basis for another essential holding in GM Trucks. 55 F.3d at 800.

9. In Adams v. St. Francis Regional Medical Center, 955 P.2d 1169 (Kan. 1998), the Supreme Court of Kansas ruled that a medical malpractice plaintiff has a constitutional right to obtain and present evidence of his or her medical care. In so ruling, the Adams court declared that a Kansas medical peer review statute was unconstitutional as applied. I was the principal author of the winning brief in Adams. I developed the constitutional issues successfully presented in Adams. As a result of my work in Adams, we were able to secure the first ruling by a state supreme court recognizing a constitutional (due process/fair trial) right to obtain and present critical evidence in a civil case. One of the nation's leading legal authorities on evidence, Prof. Edward J. Imwinkelreid, has called Adams "a major breakthrough" and "of tremendous importance" in extending the constitutional right to obtain and present evidence in civil cases. See E.J.

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Imwinkelreid, "The Blockbuster Adams Decision," TRIAL, pp. 26, 30 (October 1998).

10. In August 1997, a widow woma~ Nancy Moore, asked me for help. She claimed to be the victim of a false lawsuit filed by a rich and powerful Missouri judge, Peter Rea of Taney County. Subsequently, I uncovered compelling evidence that Judge Rea had indeed filed a false and fraudulent lawsuit against Mrs. Moore and her husband, now deceased, in a scheme to obtain a large judgment against the Moores so Judge Rea could then execute the judgment and acquire the Moores' highly-coveted 476-acre farm. The serious allegations of misconduct that I made against Judge Rea were reported in the Springfield News-Leader on May 2, 1998. See Exhibit 1 attached.

11. On July 3, 2000, the Circuit Court of Pulaski County found the allegations I had made against Judge Rea were true. The trial court sanctioned Rea, finding that he had filed a false lawsuit, false affidavits and false pleadings and committed perjury and fraud on the court. The Springfield News-Leader reported the circuit court's decision against Judge Rea the following day, July 4, 2000, in an article entitled "Rea Committed Perjury, Judge Rules." See Exhibit 2 attached.

12. On appeal, the Missouri Court of Appeals affirmed the trial court's judgment of sanctions against Judge Rea, ruling that my allegations against Rea had been proved by clear and convincing evidence. Rea v. Moore, 74 S.W.3d 795, 801 (Mo. App. 2002), attached as Exhibit 3. In December 2002, the Missouri Lawyers' Weekly identified Rea v. Moore as one of the most important judicial decisions in Missouri in 2002.

13. I was simply doing my job in the Rea v. Moore case when I came across clear evidence of wrongdoing by Judge Rea. Likewise, I was simply doing my job in the B.A.S.S. case when I came across clear evidence of wrongdoing by federal judge- Mark Fuller. Lawyers have a duty to report any apparent misconduct by a judge - especially when the evidence points to criminal misconduct.

14. In a moment, I will identify compelling evidence that points to criminal misconduct by Judge Fuller. However, before doing so, I should provide more information about the B.A.S.S. case - the case that led me to Judge Fuller. To understand the B.A.S.S. case is to understand why it was

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important to become familiar with Mr. Fuller when he was assigned to be the new judge in the B.A.S.S. case.

The B.A.S.S. Case (Murray et aL v. Scott & Sevier et aL)

15. In 1967, Ray Scott of Montgomery, Alabama, founded the Bass Anglers Sportsman's Society of America (B.A.S.S. or the Society). B.A.S.S. is a national association of bass fishermen founded to protect the health of our nation's public fishing waters and to promote children's fishing programs. By law, conservation and the promotion of children's activities are charitable purposes. Also by law, any organization holding itself out for a charitable purpose is required to operate and serve the public as a charitable organization (i.e., constructive-charitable trust/duty).

16. In early 1968, newspapers reported the founding ofB.A.S.S., based on a press release issued by Scott proclaiming B.A.S.S. to be a "national organization" that would "serve to benefit this country's conservation program, with particular efforts in conserving our bass fishing waters." See "Based in Alabama, Bass Addicts Form Group," The State And The Columbia Record (Columbia, S.C.), p. 6-D (Jan. 21, 1968).

17. Since B.A.S.S. was formed, the Society's BASS Master Magazine has repeatedly proclaimed that the founding purposes of B.A.S.S. are to protect the health of our nation's public waters and to promote children's fishing programs - charitable purposes.

18. In 1970, B.A.S.S. filed antipollution suits in federal courts in Alabama, Tennessee and Texas. In those suits, B.A.S.S. held itself out to be a "national association" "existing primarily for the purpose of conserving . rivers and streams for the benefit of the public generally and sportsmen in particular." Bass Angler Sportsman Society v. United States Steel Corporation et al., 324 F.Supp. 412, 414 n. 1 (M.D. Ala. 1971), affd sub nom. Bass Anglers Sportsman Society of America v. Koppers Company, Inc., 447 F.2d 1304 (5th Cir. 1971) (the federal court in Montgomery, Alabama specifically noting that "Bass is a national association"); Bass Anglers Sportsman's Society of America v. Scholze Tannery, Inc., 329 F.Supp. 339, 347 (E.D. Tenn. 1971) (Tennessee federal court accepting and reporting as

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true that the . "Bass Anglers Sportsman's Society of America, Inc., is a society . . . existing primarily for the purpose of conserving rivers and streams for the benefit of the public generally and sportsmen in particular") (classic charitable-trust language used by a federal court to described B.A.S.S. and its purpose). See Exhibits 4 and 5 attached.

19. In another B.A.S.S. antipollution suit, a Texas federal court described B.A.S.S. as a "society" and "special interest group[]" apparently "dedicated to achieving the abatement of water pollution." Bass Anglers Sportsman's Society of America v. U.S. Plywood-Champion Papers, 324 F.Supp. 302, 303 (S.D. Tex. 1971). See Exhibit 6 attached.

20. In 1975, the Society's BASS Master Magazine announced a B.A.S.S. membership dues increase, quoting B.A.S.S. founder and president Ray Scott saying that, "It is our responsibility to continue to support conservation and research projects, not hedge on our promises." In that same article, Scott said to the national membership of B.A.S~S., "With your continued support, together we'll make ·BASS a stronger conservation group .... " See Exhibit 7 attached.

21. Today, B.A.S.S. has more than 2,700 nonprofit B.A.S.S. chapters (local B.A.S.S. clubs). B.A.S.S. also has more than 40 nonprofit state B.A.S.S. federations.

22. In February 1992, Bradley Murray, a lifetime member of B.A.S.S., filed a lawsuit against Ray Scott and associates in federal court in Wichita, Kansas. In 1995, Murray's suit was transferred to the federal court in Montgomery, Alabama.

23. Mr. Murray's lawsuit alleges that Scott and and others devised a deceptive scheme to loot (steal) all of the Society's membership dues and BASS Master Magazine advertising revenues - money that should have been used to accomplish the Society's charitable mission: clean-water efforts and the promotion of children's fishing programs.

24. Mr. Murray's suit, filed on behalf of himself and all other members of B.A.S.S. nationwide, alleges that Scott and others stole more than $75 million from the Society that should have been used for conservation and children's fishing programs. As of today, the amount of money that Ray Scott and his associates have allegedly looted from B.A.S.S. could top $150

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million - making B.A.S.S. one· of the worst conservation and children's frauds in U.S. legal history.

25. Mr. Murray's lawsuit describes the scheme Scott and his associates have used to loot B.A.S.S. of its conservation and children's funds. In April 1969, nearly 1 ~ years after Scott formed B.A.S.S., he then fonned a for­profit corporation with a name deceptively similar to that of the Bass Anglers Sportsman Society of America. The name Scott chose for his for­profit corporation: Bass Anglers Sportsman's Society of America, Inc. (later changed to B.A.S.S., Inc.).

26. It is this deceptive similarity between B.A.S.S. and B.A.S.S., Inc. that has allowed Scott and his associates to loot all of the Society's membership dues and other revenues by way of a corporation with a name deceptively similar to B.A.S.S. - BA.S.S., Inc. This looting scheme is based on a shell game between B.A.S.S. (the Society) and B.A.S.S., Inc. (Scott's for-profit corporation). B.A.S.S. membership dues and the Society's magazine revenues come into B.A.S.S. (the Society), but instead of being spent on the Society's conversation and children's programs, Scott and his associates transfer all of the Society's funds from B.A.S.S. to B.A.S.S., Inc. and then into their pockets.

27. Shortly after Murray filed that B.A.S.S. lawsuit, the Macon Telegraph published an article about B.A.S.S. and Murray's lawsuit, entitled "Is There Something Fishy at BASS?" See Exhibit 8 attached.

28. In December 1995, the Wall Street Journal published an extensive article about the B.A.S.S. case. See Exhibit 9 attached. The WSJ article reports Scott's claim (part of the cover-up) that B.A.S.S. was never really a society but, rather, a for-profit business Scott claimed to own. However, Scott's claim is contrary to more than 30 years of published statements by Scott and his associates holding B.A.S.S. out to be a national association of bass fishermen formed to serve two charitable purposes: conservation the promotion of children's fishing programs.

29. In this same Wall Street Journal article, one of the world's leading authorities on white-collar crime, G. Robert Blakey, chief author of the federal RICO laws for Congress, is quoted as saying that the B.A.S.S. case involves a "large, longtime massive fraud." See Exhibit 9 attached. Convinced that the B.A.S.S. case involves a huge nationwide fraud on bass

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fishennen, conservationists and children, Mr. Blakey agreed in 1992 to become one of the attorneys for plaintiff Murray in the B.A.S.S. case.

30. The B.A.S.S. case also involves a huge fraud on the membership of B.A.S.S., because many believe that B.A.S.S. is a conservation-fishing society, not a for-profit business. Indeed, one of Scott's closest associates and a co-defendant in the B.A.S.S. case (Helen Sevier) was quoted in Success Magazine as saying that people look on B.A.S.S. as a "nonprofit­type organization." See "Renegades: They Destroyed The Old To Create The New: Artists Of The Impossible," Success Magazine (Feb. 1991) at 24. And, the Virginia B.A.S.S. Federation specifically refers to the "non-profit" purposes ofB.A.S.S. in its constitutionlby-Iaws. See Exhibit 10 attached.

31. A basic rule of association law is that association members are co­owners of the association and its property. In fact, in the B.A.S.S. case, the Kansas federal court (Judge Belot) has already ruled that associations are co­owned by their members. See Murray v. Sevier, 156 F.R.D. 235, 244-45, 250 (D.Kan. 1994) ("each B.A.S.S. member is a tenant in common with respect to B.A.S.S. property, and each holds a joint, common and undivided interest in said property"). Judge Belot also ordered that the B.A.S.S. case be certified as an association class action (Rule 23.2).

32. In effect, the B.A.S.S. case involves the theft by inside officials of a national association, its magazine and all of its membership dues. It is no different than if Charlton Heston stole the National Rifle Association (NRA) and assets by way of a deceptively similar for-profit corporation named NRA, Inc. Properly understood, what Ray Scott and his associates have done to the Bass Anglers Sportsman's Society of America is no different than insiders stealing Ducks Unlimited, the Sierra Club, the NRA or the National Geographic Society.

33. The members of B.A.S.S., including Murray, are entitled to win their lawsuit - based on undisputed public facts and universal rules of law. For more than 30 years, Scott and his associates have publicly held B.A.S.S. out to be an association. By law, an association is co-owned by its members. It is undisputed that Ray Scott and his associates have pocketed all B.A.S.S. funds as their own. Consequently, Scott and his associates have breached their fiduciary duties to the association's members as a matter of law.

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34. In addition, for more than 30 years, Scott and his associates have publicly held B.A.S.S. out to be an organization founded primarily for two charitable purposes. This charitable public holding out is undisputed. Therefore, Murray and the membership of B.A.S.S. are entitled to win their lawsuit as a matter of basic charitable law.

35. There is another reason Murray and the membership of B.A.S.S. are entitled to win their lawsuit as a matter of law. B.A.S.S. is comprised of more than 2,700 nonprofit B.A.S.S. chapters and more than 40 nonprofit state B.A.S.S. federations. It is a legal impossibility to operate a nationwide nonprofit organization as a for-profit business - which is precisely what Scott and his associates claim the right to do. The operation of the Bass Anglers Sportsman's Society of America as a for-profit business is completely unlawful.

36. The point to my detailed discussion of the B.A.S.S. case is this: based on more than 30 years of public facts that cannot be disputed, combined with universal principles of association and charitable law, Mr. Murray and the membership of B.A.S.S. are entitled to win the B.A.S.S. lawsuit and cannot lose unless the judge in the case: (a) inadvertently or intentionally disregards, or is unfaithful to, the universal rules of law that control the outcome of the B.A.S.S. case; or (b) is dishonest and/or corruptible, vulnerable or susceptible to improper influence.

37. In every lawsuit, the parties have a constitutional (due process) right to a fair and honest judge above reproach. This core right to judicial integrity is especially critical in a case such as B.A.S.S., where as much as $150 million is at stake and the end result could expose a huge nationwide conservation and children's fraud.

38. There are also politics at work in the B.A.S.S. case. Since the late 1970s, Ray Scott has used his (ill-gotten) wealth and prominence to align with the Bushes. In a 1999 vanity-press biography, Scott repeatedly mentions his connection with the Bushes. See R.H. Boyle, BASS BOSS: The Inspiring Story of Ray Scott and the Sportfishing Industry He Created (Whitetail Trail Press, Pintlala, AL) at 203, Exhibit 11 attached. Scott's biography reports that both father and son Bush have helped Scott when requested. Id. at 203, 263-264. Chapter 20 of Ray Scott's biography is entitled, "The White House Connection." Id. at 232.

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39. Scott's 1999 biography also suggests that Scott enjoys special access with Gov. Bush, now President of the United States and a "life member of B.A.S.S." ld. at 293. Scott is also quoted in this book as saying that: "George W. told me that outside his father and family, the two men who had had the most profound effect on his life were Billy Graham and Ray Scott. One had taught him about faith and the other about bass fishing." ld. at 293.

40. Ray Scott's claim to enjoy a special connection with the Bush family is not mere braggadocio. Former President Bush wrote a letter to the Wall Street Journal in January 1996 criticizing the WSJ for publishing its December 13, 1995 article about the B.A.S.S. case and its obvious merit.

41. Concerns that the B.A.S.S. case could be subject to political influence are valid. For example, prominent Washington D.C. attorney Roger Mehle, a longtime lawyer, fonner Reagan administration official and lifelong Republican has charged the current Bush administration with attempting to undermine a class-action fraud lawsuit filed on behalf of a federal employee retirement fund against a "well-connected" computer software company. See The Lawyer's Column, "Lawsuit Adds to Turmoil at Retirement Fund," The Washington Post (Feb. 10,2003) at page E01.

42. In fact, after the B.A.S.S. case was transferred to Alabama, someone in the Montgomery federal court clerk's office confided in me that he/she was "worried" about the B.A.S.S. case. The clear implication was that this person, and perhaps others in the clerk's office, were "worried" that because of the politics and the connections enjoyed by the B.A.S.S. defendants, the B.A.S.S. case would not be decided on its merits. I should note, however, that the conversation I had with this person occurred before Judge Thompson was assigned to the B.A.S.S. case.

43. In sum, the political connections Ray Scott and the other B.A.S.S. defendants enjoy have also made it necessary for Mr. Murray and his attorneys to ensure that any judge appointed to the B.A.S.S. case is a person of llllquestioned integrity who can transcend politics and any improper influence.

44. The importance of becoming familiar with any judge assigned to the B.A.S.S. case has already been illustrated in this case. In 1995, when the B.A.S.S. case was transferred to the federal court in Montgomery, Alabama, the case was assigned to Judge Ira DeMent.

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45. Simply doing my job, I researched Judge DeMent's background and discovered that while serving as an Alabama U.S. attorney, Mr. DeMent was involved in three of the 1970 B.A.S.S. antipollution suits and had been told in a letter by a B.A.S.S., Inc. attorney (Morris Dees) that B.A.S.S. is a "national association." See Exhibit 12 attached. My research and investigation led to other information suggesting that Judge DeMent might have knowledge of facts material to the B.A.S.S. case.

46. Based on my work, it became clear Judge DeMent was not qualified to serve as a judge in the B.A.S.S. case. The federal court of appeals in Atlanta agreed and ordered Judge DeMent removed from the B.A.S.S. case. See Murray v. Scott, 253 F.3d 1308 (lIth Cir. 2001), Exhibit 13 attached. In reaching its decision, the Eleventh Circuit relied on our background investigation of Judge DeMent.

47. When the Eleventh Circuit sent the B.A.S.S. case back to Montgomery, Judge Thompson was assigned to the case. We researched Judge Thompson and concluded he was qualified to serve as the judge in the B.A.S.S. case.

48. In December 2003, I was notified by Murray's counsel of record, Randall E. Fisher, that Judge Fuller had been assigned judge in the B.A.S.S. case. This was unexpected, because Judge Thompson: (a) had been the judge in the B.A.S.S. case for well over a year; (b) had spent substantial time mastering the case; and (c) had been asked by the parties to decide the case without a jury.

49. After learning Judge Fuller would replace Judge thompson, I simply did my job becoming familiar with Judge Fuller. I started by conducting internet research. I discovered news reports and reference to an editorial in the Montgomery Advertiser that raised disturbing questions about Mr. Fuller.

Background Information And Evidence Of Wrongdoing By Mr. Fuller

50. The following are news articles I found that raised disturbing questions about Mr. Fuller:

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Phillip . Rawls, "Nearly Doubled Salary Won't Boost Investigator's Pension," Associated Press (AP) (Dec. 4, 2002);

Editorial, "Backloading, Retirement Board Stops Pension Boost," Montgomery Advertiser (Dec. 5, 2002);

Kim Lewis, "Circuit Judge McAliley Applies For Position As District Attorney," The Southeast Sun at lA (Dec. 11, 2003);

Stephen Stetson, "Judge Blasts DA's Office," The Messenger (Troy, AL) (Dec. 13, 2002);

Editorial, "DA Office Comes Under Fire," The Messenger (Troy,AL) (Dec. 15, 2002);

Kim Lewis, "Folmar Defends District Attorneys Office," The Southeast Sun On Line Edition (Dec. 18, 2002); and

Nan Stinnett, "Siegelman Appoints New District Attorney," The Enterprise Ledger (Dec. 24, 2002).

51. One of the first articles I came across was the Associated Press article by Phillip Rawls, dateline Montgomery, Ala., December 4, 2002, entitled "Nearly Doubled Salary Won't Boost Investigator's Pension." This article, attached as Exhibit 14, reported in pertinent part:

A south Alabama investigator whose salary nearly doubled in one year to $152,014 won't be allowed to use the skyrocketing income to boost his state pension by $1,000 a month, despite a plea from a new federal judge who approved the pay hike.

The board of the Employees Retirement System voted against Bruce DeVane on Wednesday, turning aside arguments from his former boss, new U.S. District Judge Mark Fuller.

. . . . De Vane is chief investigator for the district attorney of Coffee and Pike counties. Fuller, who recently stepped down as district attorney to become a U.S. district judge in Montgomery, appeared before the retirement board Wednesday to support DeVane.

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The fonner district attorney [Fuller] said he boosted DeVane's pay from $80,307 in 1999 to $152,014 in 2000 to compensate him for working nights and weekends on developing policies and procedures manuals for the office.

. . .. Fuller said DeVane wants to retire because of health problems, and his extra pay in 2000 should be considered nonnal compensation in computing his pension.

Under state law, a retiree's pension is based on his best three years of payout of the last 10. The staff of the state pension program has refused to count DeVane's $152,014 salary because they consider the extra income to be overtime, which is not used to calculate a pension. DeVane appealed to the board of the Employees Retirement System, which set up the hearing Wednesday.

Marc Reynolds, deputy director of the Retirement Systems of Alabama, said that if the $152,014 salary was counted, it would boost DeVane's pension by $1,000 a month.

If DeVane were to retire Feb. 1, his monthly pension would be $4,835 without the high year and $5,871 with it, Reynolds said. If the 49-year-old investigator lives a nonnal life span, he would collect about $330,000 extra by using the high year, Reynolds said .

. David Bronner, CEO of the Retirement Systems of Alabama, said the pension program stays on the lookout for employees whose compensation increases dramatically shortly before they retire.

"Spiking is something that can wipe out a pension fund," Bronner said.

Reynolds said De Vane's 2000 salary was out of line with what investigators for state agencies earn. Their pay range goes from $40,000 to $83,000, he said.

But Fuller said state law gives a district attorney complete control over his staff's salary. "What I have done is legal under the law," he said.

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52. This AP article raised disturbing questions about Mr. Fuller. First, Dr. Bronner (RSA CEO) reportedly used the word "spiking" in reference to Mr. Fuller's attempt to obtain a higher pension for Mr. DeVane. Spiking is a form of pension fraud - especially if accompanied by a false statement of fact knowingly made in an attempt to obtain financial benefits. Spiking is the manipulation of an employee's salary shortly before retirement in a scheme to obtain higher retirement benefits than otherwise pennitted. Spiking is a fraud on retirement funds and a fraud on honest employees and retirees. For public retirement funds, spiking is also a fraud on the government and taxpayers.

53. This AP article reported that Mr. Fuller, "a new federal judge," appeared before the RSA board of control ("appeal board") in an effort to obtain substantially more retirement benefits for Mr. DeVane. Yet, the AP article reported that the RSA appeal board rejected Mr. Fuller's statements and unanimously ruled against the benefits increase. Because I correctly asswned Judge Fuller was under oath in that proce"eding [see Code of Ala. § 36-27-27(a)], and because the RSA appeal board rejected DeVane's appeal, it appeared to me that the appeal board did not believe Judge Fuller. To me, it appeared that if the RSA appeal board had believed Judge Fuller, the board would have approved (and indeed may have been obligated to approve) DeVane's appeal for increased benefits.

54. This AP article also included information consistent with spiking and a scheme to defraud a pension fund. The article reported that DeVane's salary "nearly doubled in one year to $152,014" - also describing the salary increase as "skyrocketing income." Such descriptions are strong indications of a pension-spiking scheme. And the fact De Vane retired only a year after Fuller spiked DeVane's salary strongly indicates a well-planned conspiracy to defraud the Alabama public employees' retirement fund by way of Fuller's spiking of DeVane's salary shortly before retirement.

55. This AP article also reported that Mr. Fuller represented to the RSA that he [Fuller] paid DeVane $152,014 in 2000 to compensate DeVane for also working nights and weekends "developing policies and procedures manuals for the office." For reasons I will not discuss now, Mr. Fuller's statement is not believable.

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56. After reading this AP article, it appeared that the RSA appeal board did not believe Mr. Fuller's testimony. For a new federal judge to appear before a state agency and not be believed is a serious matter.

57. In addition, the AP article reported that Mr. Fuller claimed that the law gave Fuller complete control to pay De Vane any salary amount Fuller wanted to pay. See Exhibit 14 attached (at page 2).

58. Mr. Fuller's claim is an incorrect statement of the law. Government officials may not authorize or pay salaries in excess of the fair and honest value of actual services rendered to the government/public. This basic rule of government and fiduciary law is also codified in 18 U.S.C. § 1346, which makes it a federal crime for a state or local official to use the U.S. mails in furtherance of a scheme to defraud the public of honest government services. Federal and state law limits the compensation Fuller gave DeVane to the fair and honest value of government services actually performed by Mr. DeVane.

59. Ironically, Mr. Fuller's incorrect statement of the law, quoted in the AP article, suggests the guilty state of mind (mens rea) under which Fuller was operating when Fuller spiked DeVane's salary. In essence, Mr. Fuller revealed that to his way of thinking, he could give his buddy DeVane an extra $70,000+ in public funds and, even if their salary spiking scheme failed, they would still enjoy complete immunity under the law. Mr. Fuller's thinking is wrong. The law does not give immunity to those who conspire or attempt to defraud a government agency or pension fund.

60. To conclude here, after I found and read this AP article, it appeared that Mr. Fuller, the new federal judge appointed to the B.A.S.S. case, had spiked De Vane's salary and lied to the RSA in a scheme to defraud the Alabama public employees' retirement fund of some $330,000. Further investigation confIrmed (and added to) my concerns.

61. During my research, I saw reference to an editorial published by the Montgomery Advertiser on December 5, 2002. This editorial is about Mr. Fuller's spiking of DeVane's salary and the attempt by these two men to use the spiked salary to obtain $330,000 in extra retirement benefits. This editorial was published one day after new federal judge Fuller testified before the RSA appeal board. A copy of this editorial is attached as Exhibit 15. It states in pertinent part:

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BACKLOADING

Retirement Board Stops Pension Boost

The taxpayers of Alabama owe the State Employment Retirement System board and staff a note of gratitude for protecting the public purse.

The attempted raid on the retirement system involved the chief investigator for the district attorney of Coffee and Pike counties, Bruce DeVane. Luckily for taxpayers, it was stopped by the RSA board.

In 1999, DeVane was paid the handsome wage of $80,307. But in 2000, as he approached retirement, DeVane's pay was almost doubled, zooming to $152,014.

Since state retirement pay is based on earnings in the highest three years in the last 10 years of work, that huge increase would have raised DeVane's retirement pay by $1,000 per month. If the investigator, who is 49, lived the average life span expected for a man of his age, retirement officials estimate this one-year pay boost would cost a bout $330,000 extra.

DeVane's former boss, then-district attorney Mark Fuller, said he raised DeVane's pay to compensate him for working nights and weekends on developing policies and procedures manuals for the district attorney's office. Fuller has since been named a U.S. district judge in Montgomery ..•.

62. This Montgomery Advertiser editorial is telling. It describes the activities of Fuller and De Vane as an "attempted raid on the retirement system." It applauds the RSA for "protecting the public purse" and taxpayers. It clearly suggests that Fuller's spiking of De Vane's salary was bogus and for the improper purpose of obtaining extra retirement benefits to which DeVane was not entitled. To me, this Advertiser editorial raised even more disturbing questions about new federal judge Mark Fuller. For history's sake, I should also note that on the date this editorial was published (Dec. 5), Fuller had only been a new federal judge for nine (9) days. In only

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. nine (9) days, Fuller had already brought the federal judiciary into public disrepute, thus violating Canon 1 of the Model Code of Judicial Conduct (1990).

63. On December 11,2002, The Southeast Sun (Enterprise, AL) published an article by Kim Lewis headlined, "Circuit Judge McAliley Applies for Position as District Attorney." See Exhibit 16 attached. It reports Judge McAliley applied for the district attorney's position vacated after Mark Fuller became federal judge. The article reports Judge McAliley was prompted to apply because of "questionable practices" in the DA' s office under Fuller. The article also reports McAliley wrote a letter to Governor Siegelman saying "terrible things had come to exist" in the DA's office under Fuller, including questionable financial dealings.

64. In this same edition of The Southeast Sun, a companion article was published under the headline "RSA Denies Extra Retirement Funds For DeVane." See Exhibit 16 attached. It reports the RSA denied DeVane's appeal for higher. retirement benefits. The article explains that district attorney Mark Fuller paid DeVane the "extraordinary compensation" and quotes RSA official Don Nelson saying that the RSA "has received feedback from taxpayers who were outraged at DeVane's compensation 'and justifiably so. '" Mr. Nelson is also quoted saying that, "Taxpayers should really be outraged if it were to stand."

65. On December 13, 2002, The Messenger (Troy, AL) published a front page article headlined "Judge blasts DA's office." See Exhibit 17 attached. The article details Judge McAliley's allegation that questionable financial dealings had occurred while Mark Fuller was district attorney. The article reports as "notable" the lack of any effort by Joel Folmar to defend Mark Fuller for spiking DeVane's salary.

66. On December 15, 2002, The Messenger (Troy, AL) published an editorial headlined, "DA office comes under fire." See Exhibit 18 attached .

. It says in pertinent part:

Practices and procedures in the District Attorney's Office have come under fire in recent weeks, and the public is right to be increasingly concerned.

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Since Mark FuUer, district attorney for Pike and Coffee counties, resigned Dec. 3 to accept a federal judgeship, a questionable pay raise and challenges to the financial management of the office have surfaced.

In the first instance, the state retirement board questioned a pay raise that nearly doubled the salary of an investigator in one year - from $80,000 to $152,000. Fuller said the raise was due the investigator because of extra work done to complete manuals for the office. The retirement board questioned its legitimacy, inferring that the one-year raise was designed to skew the pension calculation for the investigator.

Now, the circuit judge who works most closely with the office has written a letter to Gov. Don Siegelman, challenging the fiscal management of the office. Judge George McAliley - who admittedly seeks the DA appointment - says employees in that office were being given Christmas bonuses of up-to $4,000, while others were asked to pay for office supplies with their own money. ­McAliley also hinted that the Child Support Unit was in danger of being closed.

Now, the public is left wondering just what is taking place in the District Attorney's office. _ ..

_ . _ . the governor needs to move quickly to appoint a new DA, and he needs to press for accountability in that office. It is too important to the people of Pike and Coffee counties to be caught in a firestorm of allegations and controversy_

67. The Messenger's editorial described the story that Judge Fuller told the RSA appeal board in an attempt to justify the huge increase in DeVane's salary (i.e., that DeVane also worked nights and weekends on office manuals). The Messenger editorial then made this compelling observation: "The retirement board questioned its legitimacy, inferring that the one­year raise was designed to skew the pension calculation for the investigator. "

68. This illustrates that The Messenger inferred from the RSA's rejection of Fuller's story the same thing I initially surmised: that the RSA believed

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Fuller was not telling the truth and that Fuller had given De Vane an extra $70,000+ in an attempt to "skew the pension calculation for the investigator" to get an extra $330,000 in benefits.

69. On December 24, 2002, The Enterprise Ledger (Enterprise, AL) published an article by Nan Stinnett headlined, "Siegelman appoints new district attorney." It reported that Gov. Siegelman appointed Judge Gary McAliley as the new district attorney for the 12th Judicial Circuit - the DA position vacated by Mark Fuller. The article refers to the Montgomery Advertiser's editorial of Dec. 5, 2002 that blasted DeVane and Fuller; refers to alleged fmancial problems in the DA's office under Fuller; and reports that Enterprise community leaders had "expressed concern about issues in the district attorney's office" and had asked McAliley to become the new DA in order to clean up the DA's office after Fuller's departure.

A Telepbone Call To Alabama

70. On or about January 30, 2003, I telephoned Judge McAliley in Alabama. I introduced myself and explained the purpose for my call. I explained that a new federal judge, Mark Fuller, had been assigned to the B.A.S.S. case. I briefly explained the B.A.S.S. case and the importance of having a judge of unquestioned integrity. I explained having found news articles that raised disturbing questions about Mr. Fuller.

71. Most importantly, I told Judge McAliley that based on the news articles that I had read, my impression was that the RSA did not believe Judge Fuller at DeVane's appeal hearing. Judge McAliley said I had done my homework and confinned that my impression was correct. Judge McAliley then said that he had met with RSA officials and that an RSA official told McAliley that every member on the RSA board believed Mark Fuller had lied and that Fuller had lied under oath.

72. At that point, I realized the situation was serious. Because of the gravity of the situation, I told Judge McAliley that I would schedule a trip to Alabama to investigate further.

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My Trip To Alabama

73. On Friday, February 21, 2003, I met Gary McAliley in his district attorney's office in Troy, Alabama. I asked Mr. McAliley to prepare a self­executing affidavit about the RSA official who said the board believed that Judge Fuller had lied. Mr. McAliley agreed to do so. See Exhibit 19 attached.

74. Mr. McAliley's affidavit states in pertinent part:

I was a state judge for approximately 27 years. Recently, I was appointed by the Governor of Alabama as District Attorney, 12th Judicial Circuit, State of Alabama to fill a vacancy left by Mark Fuller who was recently sworn in as U.S. District Judge, Middle District, Alabama.

Several days before Christmas, 2002, I traveled to Montgomery, Alabama and met with Retirement Systems of Alabama (RSA) lawyers in reference to an investigator who had been paid by the prior administration [Fuller] the highest pay in the state, i.e., $80,000 plus. In addition to the investigator's salary, the investigator was also paid an additional compensation by the prior administration of $70,770. The investigator was trying to retire at a salary of $152,000 plus .... One of RSA's two lawyers told me in the presence of RSA's other top lawyer that Mark Fuller testified under oath before the RSA Board in support of the investigator $152,000 salary and that not one single Board member believed Mark Fuller was not lying.

I state under penalty of perjury that the foregoing is true and correct.

Date: 2/21103 Signed: Gary McAliley

75. The following Monday, February 24, 2003, I met with two RSA officials in Montgomery, Alabama. To protect any government investigation, I will not disclose here the identities of these two RSA

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officials. In the future, however, I will do so if and when circumstances reqUIre.

76. The first RSA official whom I met pulled no punches. This official said that Fuller and DeVane had attempted to defraud the Retirement System of Alabama. This official also showed me documentary evidence that strongly suggests Judge Fuller knowingly lied to the RSA appeal board when Judge Fuller testified at DeVane's appeal hearing on December 4, 2002.

77. This RSA official showed me a letter Fuller had written the RSA, dated January 2, 2002. See Exhibit 20 attached. In this letter, Fuller specifically states that the additional compensation Fuller gave De Vane in 2000 (i.e., the additional $70,000+), was for additional duties that DA Fuller had requested of DeVane "beginning January 1, 1997." Fuller's letter also states that the DA's office did not have the money to pay DeVane for this additional work until 2000.

78. However, when Judge Fuller testified before the RSA appeal board on December 4, 2002, Fuller directly contradicted his prior letter of January 2, 2002. Judge Fuller testified that the extra $70,000+ he gave DeVane was for additional duties DeVane performed in the year 2000 only.

79. Fuller's letter and his later testimony are in direct conflict. Fuller's letter of January 2, 2002 plainly states that the extra money paid De Vane in 2000 was for additional duties Fuller had requested that De V ane perform "beginning in January 1, 1997." However, in his testimony, Judge Fuller said that he assigned additional duties to DeVane to perform in the year 2000 only. This is a huge inconsistency in Fuller's stories.

80. There's another huge hole in Fuller's conflicting stories. When Fuller testified before the RSA appeal board, he testified that he and De Vane specifically decided in 1999 that DeVane would perform these additional duties in 2000. However, in Fuller's letter of January 2, 2002, Fuller was very specific when he said that the additional duties were assigned to DeVane "beginning in January 1, 1997." Which story is true?

81. Fuller claims that his conflicting stories are all part of a "misunderstanding." This is simply another one of Fuller's lies. A common defense for those caught lying is to say that their inconsistent statements are

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simply part of a "misunderstanding." However, under the circumstances here, there can be no misunderstanding. Fuller was very specific in his letter of January 2, 2002, that the additional duties were assigned "beginning in January 1, 1997." However, when Fuller testified before the RSA on December 4, 2002, he specifically said that the additional duties were assigned at the beginning of the fiscal year 2000 (1999) to be perfonned in the year 2000 only. There's nothing to misunderstand here. Fuller is lying; it's simply a matter of figuring out the extent to which Fuller is lying.

82. If Fuller cannot keep his stories straight, then perhaps these additional duties were never actually assigned, or perfonned, and the additional $70,000+ that Fuller gave DeVane in 2000 was simply a part of their scheme to spike DeVane's salary in an attempt to then defraud the RSA out of an additional $330,000 in pension benefits.

83. The first RSA official also explained that the RSA got "heartburn" with Fuller's testimony that the extra $70,000+ was for work in 2000 only, because it was obvious Judge Fuller had completely changed his story and tailored his testimony to the calculation method that would best serve DeVane. That is, if the entire $152,014 was paid for work in 2000 only, it would have substantially increased DeVane's average salary -causing DeVane's retirement benefits to increase another $1,000 a month for an estimated 330 months, or $330,000. However, if Fuller had stayed with the story he told in his letter to the RSA dated January 2, 2002, his buddy DeVane would have received less benefits because the RSA would have averaged the $70,000+ over the years 1997, 1998, 1999 and 2000 -lowering DeVane's final average salary for purposes of calculating benefits.

84. Simply stated, when Judge Fuller testified before the RSA appeal board, he completely changed his story to fit the calculation method that would maximize DeVane's retirement benefits.

85. The first RSA official offered another disturbing insight. He explained that after Fuller was nominated to the federal bench (August 2002), DeVane delayed his appeal hearing. Then suddenly, when Fuller was confirmed by the u.S. Senate and received his commission on November 26, 2002, Fuller and De Vane were ready for an appeal hearing.

86. If so, this would suggest Fuller and De Vane delayed the appeal hearing to keep their scheme under the radar while Fuller was being

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investigated by the United States Senate and the F.B.I. for a federal judgeship. This would constitute fraud on the U.S. Senate and an obstruction of the background investigation of a judicial nominee.

87. This would also explain the highly coincidental timing of two material events. Fuller did not officially become a federal judge until November 26, 2002. Then, only days later (December 4, 2002), DeVane's appeal hearing was held and new federal judge Fuller appeared and testified.

88. The advantage to Fuller from this coincidental timing is obvious. By holding back on the appeal, Fuller and De V ane were able to lay low and avoid drawing attention or negative publicity to the obvious fact that Fuller had spiked DeVane's salary in a scheme to get DeVane an extra $330,000 in RSA pension benefits.

89. Second, by waiting to press DeVane's appeal until after Fuller became a new federal judge, Fuller and De Vane obviously intended to use the power and prestige of Fuller's new position as a federal judge to steamroll the good people at the RSA and cheat the Alabama public employees' retirement fund out of an extra $330,000. Indeed, the tenor of the Montgomery Advertiser's editorial of Dec. 5, 2002 is a congratulatory note that the RSA did not cower to this new federal judge or allow this federal judge and his buddy to "raid" the RSA pension fund.

90. The second RSA official I met in Montgomery was nervous discussing Mr. Fuller. This second RSA official explained that the RSA had lost a lot of money in the Enron scandal and that the RSA had filed a huge lawsuit against Enron officials - and that the RSA's case was pending in federal court before Judge Fuller.

91. This was shocking news. The first RSA official had told me, pointblank, that Fuller and DeVane had tried to defraud the RSA. Now, the second RSA official was telling me that the RSA had a huge case against Enron pending in front of the very federal judge who had recently lied to and attempted to defraud the RSA.

92. I then realized why the RSA had not filed a fonnal complaint against Fuller for lying and attempting to defraud the RSA. Fuller is now a powerful federal judge and the RSA is routinely involved in matters before the courts. Understandably, the good people at the RSA do not want to

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suffer retaliation for filing a formal complaint against Fuller - who is a powerful federal judge. It is similar to stories that we've all heard about wrongdoers who wield substantial power over their victims. As a new federal judge, Fuller is now the 800-pound guerrilla and the good people at the RSA are afraid of the enormous power Fuller now wields over them.

93. The second RSA official did confIrm that the RSA did not believe Judge Fuller's testimony. During our meeting, I asked this second RSA official: If the RSA appeal board had believed Fuller's testimony, would the RSA have approved DeVane's request for additional benefits? The second RSA official answered: "Probably." This official did not, however, dispute the predicate to my question - that the RSA did not believe Fuller's testimony.

94. My meetings with two RSA officials corroborated Mr. McAliley's affidavit that an RSA official had told McAliley that RSA board members believed that Judge Fuller had lied.

95. Finally, I later learned that the RSA requested that Judge Fuller recuse himself from the RSA's lawsuit against Enron (hereinafter "RSA-Enron" case). As I understand it, Judge Fuller refused to recuse himself from the RSA-Enron case. This is a very troubling situation.

96. The evidence strongly suggests that Fuller and De V ane committed serious crimes against the RSA. By refusing to recuse himself from the RSA's case against Enroll, Judge Fuller is positioned to taint the RSA and any RSA official who may testify against Fuller should Fuller ever be prosecuted for his crimes against the RSA. In the RSA-Enron case, Judge Fuller will rule against the RSA on some important issue. Then, if Fuller is ever criminally prosecuted for his crimes against the RSA, Fuller can claim that any RSA official who testifies against Fuller is doing so in retaliation for a court ruling Fuller made against the RSA. In the 1980s and early 1990s, all five of the corrupt federal judges prosecuted by the Reagan­Bush Department of Justice claimed that they were the victims of "vindictive prosecutions." In a similar way, by failing to recuse himself in the RSA­Enron case, Judge Fuller is now positioned so he can later claim that the RSA is vindictive, and out to get him, for a court ruling Judge Fuller made against the RSA in the Enron case. As incredible and sinister as this may seem, this is precisely why Judge Fuller refused to recuse himself from the RSA-Enron case. Judge Fuller stayed in the RSA-Enron case (when clearly,

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he should have recused himself) for the purpose of tainting RSA witnesses who may someday be called to testify against him.

Other Information Acquired During My Alabama Trip

97. I spoke with other people during my February 2003 trip to Alabama. A common report I heard was that when Mark Fuller was District Attorney for the 12th Judicial Circuit, he was frequently gone or out of the state. I also heard Fuller was involved with some sort of aviation company with possible military contracts. Sources also said that while district attorney, Fuller spent a substantial amount of time in Colorado. I also heard that District Attorney Fuller was rarely seen in court, although he was the district attorney in two counties. A consistent theme to these reports: Fuller was an absentee district attorney.

98. I asked the United States Senate to send me a copy of the questionnaire Mr. Fuller completed as part of the Senate's confirmation process. A copy is attached as Exhibit 21. On page 2 of this questionnaire, Mr. Fuller states that from 1989 to the present (2002), Fuller held the positions of "Chairman and CEO" (chief executive officer) of Doss Aviation, Inc., headquartered at 3320 W. Carefree Circle, Colorado Springs, Colorado 80917.

99. On page 23 of this questionnaire, Mr. Fuller states that Doss Aviation, Inc. employs 300 people.

100. In other words, while Fuller was (supposedly) serving as a fulltime district attorney for two Alabama counties between 1997-2002, he appears to have also been serving as chairman and chief executive officer for a 300-employee company headquartered in Colorado. This seems remarkable. From 1997 to 2002, Mr. Fuller was a fulltime government employee serving as district attorney for two Alabama counties.

101. Note that on page 3 of the "Financial Disclosure Report For Nominees" attached to the completed questionnaire, Mr. Fuller states that for the year 2000, he received from Doss A viation, Inc., the sum of $58,972.56 in non-investment income. This suggests Fuller was doing

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substantial work for Doss while supposedly servmg as a fulltime district attorney in Alabama.

102. If Fuller was frequently gone, or in Colorado, instead of performing his fulltime duties as an Alabama district attorney, this could explain why Fuller paid questionable compensation and questionable bonuses to key DA office employees. These employees may have covered for Fuller while he was frequently out of the DA's office. In u.s. v. Lopez, 222 F.3d 428 (7th Cir. 2000), a defendant was convicted of conspiracy to embezzle and misapply credit union funds and conspiring to execute a scheme to defraud; the scheme also involved paying certain employee what were called "bonuses" that were in fact payoffs for staying quiet and covering up.

103. Any investigation of Fuller should include obtaining travel records that would show how frequently Fuller was absent from Alabama while supposedly serving as a fulltime district attorney. If so, Fuller may have also deprived the citizens and taxpayers of Pike County and Coffee County of their right to honest government services - a possible federal crime. See 18 U.S.C. § 1346. I should also note that ifDA Fuller had not been so busy in 2000 apparently earning nearly $60,000 in extra money from Doss Aviation, then DA Fuller might have had no reason to use an extra $70,000+ in Alabama public funds to pay De Vane for working on some office manual that DA Fuller could have worked on himself. Apparently DA Fuller was too busy in 2000 (making an extra nearly $60,000 from Doss), giving Fuller the pretext to use $70,000+ in public funds to pay DeVane in 2000 for work that DA Fuller could have done himself. Tills needs to be investigated.

104. Any investigation of Fuller should also determine whether DeVane, who made his living investigating people and their crimes, had anything on Fuller. If so, this would explain why Fuller did so much to put so much public money into DeVane's pockets.

105. Also, any investigation of Fuller and his spiking of DeVane's salary should focus on the apparent fact that the DA's office under Fuller was having extreme fmancial difficulties during the same time Fuller handed DeVane an extra $70,000+ in 2000 for supposed work on some silly office manual. If Fuller's DA office was having financial difficulties, this would suggest that Fuller and DeVane were handling the DA office money for their own personal benefit, rather than for the benefit of the citizens of Pike and Coffee counties. This, in turn, would support the

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assertion that Fuller and DeVane grabbed the $70,000+ as a necessary part of their scheme to defraud the RSA out of an additional $330,000 in pension benefits - while the DA's office was struggling fmancially.

106. On another matter, while I was in Alabama in February 2003, I learned that Judge Fuller had a spy in DA McAliley's office who reported to Judge. Fuller in Montgomery that I was in Alabama investigating Fuller and attempting to schedule a meeting with Mr. McAliley. Judge Fuller's spy attempted to prevent me from meeting with Mr. McAliley.

107. Judge Fuller has yet to disclose to the parties in the B.A.S.S. case that he is aware that I had been in Alabama investigating him. A judge has a duty to disclose any fact or information that might suggest judicial bias or hostility against any attorney or party. Judge Fuller has not complied with this duty.

108. Finally, I know of other evidence and information that suggests wrongdoing by Judge Fuller. To protect any investigation into these matters, I will not discuss the details here.

Summary Analysis and Suggestions

109. Based on the evidence discussed above, it is my considered legal opinion that a jury could fmd that Mr. Fuller lied to the RSA in violation of Code of Ala. § 36-27-27. From the evidence, a jury could also fmd Mr. Fuller guilty of criminal conspiracy (with DeVane) to defraud the RSA of $330,000 and criminal attempt to defraud the RSA of $330,000. See, e.g. , Code of Alabama § 13A-4-3 (criminal conspiracy); Code of Alabama § 13A-4-2 (criminal attempt); Code of Alabama § 13A-8-2(2) (criminal theft of property by deception).

110. Because Mr. Fuller also used the U.S. mails in furtherance of a scheme to defraud the Alabama public employees' retirement fund, it is my considered legal opinion that Fuller also may have violated the federal mail fraud statute, 18 U.S.C. § 1341. Compare United States v. Tierney, 760 F.2d 382 (1 sl Cir. 1985) (defendant convicted of mail fraud in furtherance of a scheme to defraud the StatelBoston Retirement System of pension benefits). I should also note that the federal mail fraud statute makes it a crime to use

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the U.S. mails in furtherance of an attempt to commit fraud. This means Fuller could be convicted for mail fraud - even though he and De Vane did not succeed in their scheme to defraud the Alabama public employees' retirement fund.

Ill. Also troubling is that after Fuller became a federal judge, it appears he used the power and prestige of his new federal office in furtherance of his scheme to defraud the RSA. Federal Judge Fuller testified at the appeal hearing on December 4, 2002, and all indications are that this federal judge lied. If the RSA appeal board believed that Fuller lied, then perhaps a jury in a criminal prosecution would too.

112. Among other things, it appears Judge Fuller has violated Canons 1 and 2 of the Model Code of Judicial Conduct (1990). Canon 1 states that "an independent and honorable judiciary is indispensable to justice in our society." Canon 2B states that a judge "shall not lend the prestige of judicial office to advance the private interests of the judge or others." Regrettably, all evidence points to Judge Fuller using the power and prestige of his federal office to further a scheme to defraud the RSA pension fund.

113. Furthermore, if a jury found that Fuller committed any of the crimes identified in ~ 109 and ~ 110 above, a jury could also fmd that in 2000, Fuller simply gave DeVane the extra $70,000+ without DeVane actually working all those nights and weekends supposedly completing office manuals. If Fuller cannot keep his story straight as to what years DeVane actually performed the extra work, then why should a jury believe that all of this supposed extra work was actually performed?

114. If a jury fmds that DeVane did not actually perform all this extra work, and Fuller knew it, then the extra $70,000+ that Fuller handed DeVane in 2000 was embezzled and stolen government funds. If a government official hands a buddy $70,000 for work that was not done, then this money is simply embezzled and stolen government funds. Cf Us. v. Gunby, 112 F.3d 1493 (11 th Cir. 1997) (state judge embezzled filing fees from the county court; state judge convicted of mail fraud in connection with embezzling filing fees from county court). Cf also u.s. v. Phillips, 219 F.3d 404 (5 th Cir. 2000) (defendants convicted of several crimes for perpetrating scheme of local corruption involving payment of salary kickbacks and misuse of state government funds).

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115. In 1999, DA Fuller submitted a formal request to the Attorney General of Alabama asking for a legal opinion on the maximum fees the district attorney's office could charge for bad checks. I have also heard that the $70,000+ Fuller gave De Vane in 2000 may have come from the DA office's bad check fund.

116. If so, this is what could have happened. Fuller and DeVane were looking for more money to bring into the DA's office. Eventually, they succeeded in acquiring more money. DeVane was planning to retire. So he and Fuller cooked up a scheme to substantially increase DeVane's salary shortly before retirement - so De Vane could get substantially more retirement benefits ($330,000 more). So in 2000, Fuller agreed to give DeVane an additional $70,000+ because the public money was available and the two men called this money "compensation" for additional services. And their scheme to defraud the RSA began.

117. If this is what happened (and it sure looks that way), then a jury could find that District Attorney Fuller misappropriated the $70,000+ that was given to De Vane so that Fuller and DeVane could then carry out their scheme to defraud the RSA of $330,000 more. After all, DA Fuller could not spike DeVane's salary without getting the money to spike from somewhere. Keep in mind, it strongly appears Fuller lied to the RSA and has told two conflicting stories as to what years De Vane supposedly did additional work for this $70,000+.

118. Based on the evidence, it appears DA Fuller may have misappropriated more than $70,000 in public funds in order that Fuller and DeVane could then attempt to defraud the Alabama public employees' retirement fund out of another $330,000. If so, this would be a classic white-collar crime. Imagine: a public official steals $70,000+ in public funds so he can then help his buddy defraud a state public employees' pension fund out of another $330,000 in benefits.

119. On another matter, it is deeply disturbing that Judge Fuller did not recuse himself from RSA' s lawsuit against Enron. Substantial evidence plainly suggests the RSA is a victim of crimes attempted and committed by Fuller; and certain RSA officials are witnesses to these crimes. I have reason to believe there are RSA officials who would speak frankly against Mr. Fuller if they were not so afraid ofhim in his capacity as a federal judge.

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120. Also recently, I learned that DeVane has filed a lawsuit challenging the RSA's decision rejecting his spiked salary and request for additional retirement benefits. DeVane's lawsuit is a classic smoke screen -designed to camouflage the crimes committed by Fuller and DeVane in attempting to defraud the RSA.

121. Fuller and DeVane underestimated the RSA's commitment to preventing fraud against the Alabama public employees' pension fund. Fuller and De Vane also underestimated the courage of the Alabama media in frankly reporting and condemning this blatant scheme to spike DeVane's salary and "raid" the RSA pension fund. After the RSA appeal board rejected Fuller's testimony on December 4, 2002, it became obvious Fuller had lied to the RSA.

122. Afterwards, Fuller and DeVane (and perhaps an accomplice smarter than they are) realized that the best way to cover their tracks would be to make it appear that they really believed De Vane was entitled to the extra $330,000 in retirement benefits. So DeVane (with the help of an attorney close to Fuller) filed a lawsuit against the RSA, challenging the RSA' s denial of DeVane's request for additional benefits based on DeVane's spiked salary. Fuller and DeVane are hoping this lawsuit will make their scheme to defraud look like an honest effort - even if De V ane loses the lawsuit.

123. De Vane's lawsuit would also tend to keep the RSA quiet, because parties in litigation tend not to speak publicly about a pending case. This, in turn, would also silence RSA officials - which is exactly what Fuller and DeVane want from the RSA: silence. DeVane's lawsuit would also delay or prevent the RSA' s filing of any criminal complaint against Fuller and De Vane, or any request by the RSA for a criminal investigation.

124. Also, by filing this lawsuit, DeVane and Fuller hope to obtain some sort of absolution (or cover) from the judge. DeVane's lawsuit should be watched closely. However, at the end of the day, the judge in DeVane's lawsuit will not be able to influence or affect the outcome of any state or federal criminal prosecution. Only a jury in a criminal case can decide whether Fuller and De Vane committed crimes.

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125. Finally, the timing of DeVane's lawsuit against the RSA is unusual. Ordinarily, an appeal of an administrative or judicial ruling is made shortly after the adverse decision. The RSA made its [mal adverse decision against De Vane on December 4, 2002. It is my understanding De Vane waited another six months before filing his lawsuit appealing the RSA. This suggests that De Vane and Fuller were in a holding pattern during those six month, desperately trying to assess the situation and determine if they should go on the offensive to delay or impede any criminal investigation or prosecution. This is because: since at least February 2003, Fuller has known he was being investigated by me and perhaps others.

126. On another matter, I respectfully submit that the United State Senate should investigate whether Fuller and De V ane purposely delayed the RSA appeal hearing in order to impede the Senate's character and background investigation of a judicial nominee. If so, the appeal delay by DeVane and Fuller worked a fraud on the United States Senate and obstructed the Senate's attempt to thoroughly investigate a judicial nominee. It is troubling to think that while Fuller was being investigated for a federal judgeship, he and De Vane kept their ongoing scheme to defraud the RSA under the Senate's radar - only to return to their scheme and attempt to complete it after Fuller was cleared by the Senate and confirmed to be a federal judge.

The Prosecution and RemQval of Bad Judges

127. Article In, Section 1 of the Constitution of the United States provides that judges "shall hold their Offices during good Behaviour." In other words, the Constitution calls for removal of any judge who commits any crime - felony or misdemeanor.

128. In the 1980s and early 1990s, the U.S. Department of Justice, under President Reagan and Vice-President Bush, fIled criminal charges against five corrupt federal judges, obtaining four convictions. Eventually, all fIve of those judges resigned or were impeached. T. Peterson, The Role of the Executive Branch in the Discipline and Removal of Federal Judges, 1993 U.Ill.L.Rev. 809. Federal Judge Walter L. Nixon, Jr., of Mississippi, was convicted and impeached for lying. Obviously, if Judge Fuller lied to the RSA or committed any other crimes, he should be convicted of his crimes and impeached and removed from office.

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129. Courts have universally recognized that the only proper remedy for a judge who has lied or engaged in deception is to remove the judge from office. See, e.g., In re Inquiry Concerning a Judge No. 97-74, 730 So.2d 269 (Fla. 1999) (Supreme Court of Florida declaring that a judge who lied and was dishonest should be removed because such misconduct "is fundamentally inconsistent with the responsibilities of judicial office"; "the judicial system can only function if the public is able to place its trust in judicial officers"); Matter of Collazo, 691 N .E.2d 1 021 (N.Y. 1998) (Court of Appeals of New York, the state's highest court, declaring that deception by a judge is "antithetical to the role of a Judge who is sworn t6 uphold the law and seek the truth").

130. In 1980, Congress enacted The Judicial Councils Reform and Judicial Conduct and Disability Act ("the 1980 Act"). The debate over the 1980 Act is "replete with testimony and comments concerning the growth of corruption and abuse within the judiciary." Id. at 828.

131. U.S. lawmakers, including Senator Sessions, have insisted that Congress strictly enforce the Constitution's Good Behaviour Clause and impeach and remove any federal judge whose conduct does not meet exacting standards. Senator Sessions wrote in a law review article that "for the security of the rights of the people," judges hold their offices "as long as they behave themselves." J. Sessions & A. Sigler, Judicial Independence: Did The Clinton Impeachment Trial Erode The Principle, 29 Cumb.L.Rev. 489 (1998-99). (Emphasis added.) Senator Sessions has also said that because federal judges have lifetime tenure, they must behave themselves according to "a most exacting standard of public and private conduct." Id. at 519.

132. The evidence strongly suggests that Judge Fuller has failed Senator Session's exacting standard of good conduct.

133. More than once, the venerated Judge Frank Johnson said that judges must be held accountable. Judge Frank M. Johnson, Jr., Judicial Independence, 40 Ala. Law. 15, 17 (1979). America's democracy is based on the fundamental principle that no person is above the law. Judges are not, and cannot, be immune from criminal prosecution or "the citizenry would justifiably lose respect for and confidence in a system of government under which judges were apparently held to be above the processes of the

33

criminal law." T. Peterso~ The Role of the Executive Branch in the Discipline and Removal of Federal Judges, 1993 U.Ill.L.Rev. 809, 833.

134. Everyday across America, people are prosecuted and convicted for all types of government fraud: welfare fraud, Medicare and Medicaid fraud, pension fraud, unemployment fraud, government-programs fraud and so on. Many of these fraud cases involve persons who have knowingly made false statements in connection with an attempt to obtain fmancial benefits. In the federal court in Montgomery, a man was prosecuted and convicted for making false statements in connection with an attempt to obtain $870 in unemployment benefits. U.S. v. Herring, 916 F.2d 1543 (11th Cir. 1990).

135. Our democracy is also based on the principle of equality under the law. If we prosecute and convict people who lie for $870 in benefits, then we must also prosecute and convict people who lie to obtain $330,000 in state retirement benefits - even if one of them is a federal judge.

136. Moreover, if Mr. Fuller did commit crimes, he did so using positions of public trust - both as district attorney and federal judge. In both positions of public trust, Mr. Fuller apparently thOUght he could lie to the RSA and, because of his public positions of trust, the RSA would simply take him at his word and hand his buddy DeVane an extra $330,000. Fortunately, Mr. Fuller was wrong. The evidence plainly suggests Fuller attempted to abuse his positions of trust in an attempt to defraud the Alabama public employees' retirement fund out of a huge amount of money.

137. Similarly, the case of Thornton v. Evans, 692 F.2d 1064 (7th Cir. 1982), involved an abuse of trust to steal from the public. In that case, the federal court of appeals observed a pattern "distressingly prevalent" in America today: "the savings of working men and women are pilfered, embezzled, parlayed, mismanaged and outright stolen by unscrupulous persons occupying positions of trust and confidence." ld. (Emphasis added.) This quote acc.urately describes Judge Fuller and his attempt to help his buddy De Vane raid the Alabama public employees' retirement fund.

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Recommendations

138. Federal and state authorities should investigate Judge Fuller to determine whether he has committed any crimes. The House Judiciary Committee should also investigate. If the facts warrant, or if an Alabama jury convicts Fuller of any crime, Congress should impeach and remove Fuller from federal office. The United States Senate Judiciary Committee should also conduct an investigation to determine whether Fuller purposely obstructed the background investigation of a judicial nominee. If he did, Fuller also committed a fraud on the United States Senate and he should be punished accordingly.

139. Also, if Fuller lied to the RSA on December 4, 2002, then he committed crimes only 9 days after becoming a federal judge (i.e., peIjury; overt act in furtherance of criminal conspiracy; and criminal attempt to defraud the RSA). If so, this would be judicial infamy of historic dimension: a federal judge who waited only 9 days after taking office before committing crimes and violating laws he swore to uphold

140. Article ITI, Section 1 of the Constitution of the United States requires removal of any judge who violates the Good Behaviour Clause. All Americans who claim to honor, support, protect and defend the Constitution must obey its commands - even when it means applying the Good Behaviour Clause to remove from federal office a member of your own political party. It was a good day in America when members of Congress set aside all partisan politics and unanimously voted, 417-0, to impeach Mississippi federal judge Walter L. Nixon, Jr. for lying to a grand jury. And, as Senator Sessions has said, the very security of the American people requires that we vigilantly enforce the Constitution's Good Behaviour Clause as it applies to all federal judges.

141. Government officials should also keep in mind that if Fuller and DeVane did commit crimes, there are real victims of these white-collar crimes. The RSA has expended substantial funds trying to protect the RSA and its pension fund from Fuller's and DeVane's scheme to defraud the RSA. In ~ the public employees of Alabama are also victims because it is their hard-earned savings, currently held by the RSA, that have been used (and continue to be used in DeVane's civil suit) to protect the RSA and its pension fund from Fuller's and De Vane's scheme to defraud.

35

142. Furthermore, if the $70,000+ that Fuller gave DeVane in 2000 was not actually earned by De Vane supposedly working all those nights and weekends, then victims of that stolen money (public funds) include the children and custodial parents in Pike and Coffee counties who suffered because less public money was available to the DA' s office to enforce and collect child support. Several months ago, I read on the 1 ih Judicial Circuit's DA website of an e-mail complaint from a citizen whose daughter suffered delay after delay in receiving help from the DA's child support enforcement unit when Fuller was DA. Also, in any investigation of Fuller, it should be detennined whether the $70,000+ that Fuller gave DeVane was public money tied to any specific spending obligation - such as child­support enforcement.

Final Matters

143. Because of my investigation and certain conversations I have had with certain witnesses, I am a possible witness in any investigation or prosecution ' of Mr. Fuller and Mr. De Vane. Because evidence suggests that federal mail fraud statutes may have also been violated, I could be a witness in federal proceedings. Consequently, please be advised that anyone who attempts to harass or retaliate against me could be subject to federal criminal sanctions, including 18 U.S.C. § 1512(b). State criminal laws may also apply.

144. In the B.A.S.S. case, I have been harassed and my life threatened twice by Ray Scott. One of Mr. Scott's attorneys asked a friend of mine where my parents and sister lived.

145. I will no longer tolerate any harassment, intimidation or retaliation -including veiled threats directed to me or my family. I will use the full force of the law to protect and defend myself and my family against anyone who harasses or retaliates against me or my family for doing my duty as an attorney and officer of the court.

146. Also, be advised that any person or attorney who harasses me, or retaliates against me, under pretense of civil process or suit in Alabama will be sued immediately in a Missouri court for tortious abuse of process. This warning should be heeded by Mr. Fuller's attorneys and any accomplices.

36

Among other things, I will rely upon the truth as an absolute defense. I will present to a jury compelling evidence and witnesses to show reasonable belief that Fuller and De Vane committed crimes. I also remind Fuller, De Vane and any of their accomplices of the legal force of Judge McAliley's affidavit recounting what an RSA attorney told Judge McAliley. And, I remind Fuller and his accomplices that I previously proved that a Missouri judge lied in judicial proceedings and attempted to commit fraud on a Missouri court.

147. As an attorney and officer of the court, I have merely performed my duty in preparing and submitting this affidavit to the appropriate governmental authorities. No reasonable person can say that there is not evidence that points to criminal misconduct by Messrs. Fuller and DeVane. As one RSA official flatly told me, Fuller and DeVane tried to defraud the RSA. And, Judge McAliley's affidavit confirms that the RSA board of control concluded that Judge Fuller lied. See Exhibit 20 attached.

148. In 22 years as an attorney, several judges have complimented me on my work. In my career, only once has a judge criticized me. When the B.A.S.S. case was pending in Kansas, Judge Belot chastised Murray's attorneys, including me, for suggesting that if the B.A.S.S. case was transferred to Alabama, the B.A.S.S. case might be decided by politics and influence and not on the facts and the law.

149. After the B.A.S.S. case was sent to Alabama, Judge DeMent ignored 30 years of public documents and universal rules of law by attempting to rule, in 1999, that B.A.S.S. was not an association - a ruling later set aside by the Eleventh Circuit when Judge DeMent was disqualified.

150. After Judge DeMent issued his plainly erroneous ruling, Kansas federal judge Belot (who presided over the B.A.S.S. case for 3 years and knew the case well) reportedly said that Judge DeMent's ruling was a "damn shame" - or words to that affect.

151. Recently, another attorney told me that he also remembers hearing that Judge Belot was critical of DeMent's ruling. This attorney says he specifically recalls thinking Judge Belot was being "hypocritical" for criticizing Judge DeMent's ruling when Judge Belot had previously chastised Murray's attorneys for suggesting Alabama might be an unfair venue for the B.A.S.S. case.

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152. Ironically, as it now turns out, Judge Belot criticized me and other Murray attorneys for accurately warning that it would be difficult, given the politics and connections of the B.A.S.S. defendants, to obtain justice for the B.A.S.S. case in Alabama. And now, the B.A.S.S. case faces yet another obstacle to justice in Alabama: a new federal judge, Mark Fuller, who plainly appears to have committed crimes, and, who plainly appears corrupt and subject to improper influence.

153. For the record, Mr. Randall E. Fisher, lead counsel of record for plaintiff Murray in the B.A.S.S. case, has not participated in my investigation or preparation of this affidavit. I have infonned Mr. Fisher that I had uncovered evidence of wrongdoing by Mr. Fuller. Understandably, Mr. Fisher's concern is that Judge Fuller or perhaps others close to Fuller will punish plaintiff Murray and his lawyers if I submitted this affidavit. There is also concern that Judge Albritton, although a brilliant jurist, IS

reportedly close to Mr. Fuller.

154. In any event, I told Mr. Fisher that I had no choice but to do my duty and prepare and submit this affidavit. I take full responsibility for this affidavit and am saddened that Mr. Fuller's obvious disrespect for the law and for other people - including the people of Pike and Coffee counties and the public employees of Alabama - has required that I prepare and submit this affidavit.

155. On July 24, 2003, as I was working to ftnish this affidavit, I learned the RSA has published a front-page editorial in the August 2003 issue of the RSA membership's periodical, ADVISOR. See Exhibit 22 attached. This front-page editorial is entitled" A Federal Judge & Integrity, Part 1." It is about Judge Fuller and begins with a quote from Mr. Mel Cooper, the first director of the Alabama Ethics Commission, who said: "If it looks bad and you do not want it on the front pages then do not do it!" The article then discusses Judge Fuller and an adverse ruling Judge Fuller recently made against the RSA in the RSA-Enron case. The last paragraph of the editorial states:

Next month, we will discuss how Judge Fuller appeared before the RSA Board of Control last December and failed to convince the ERS Board of Control to give his friend a $330,000 boost in retirement incomes, and how his "pay-back" affects every Alabamian.

38

156. This editorial is a positive sign that RSA officials are finding the courage to speak candidly about Judge Fuller and his blatant scheme to defraud the RSA. However, Fuller might now claim that anything bad the RSA says about him is because of a court ruling Judge Fuller made against the RSA in the Enron case. Fuller and his strategists, have been very clever in their plan to taint RSA witnesses. However, the evidence of Fuller's crimes against the RSA is so compelling that Fuller's attempt to taint RSA witnesses will fail.

157. This affidavit is submitted pursuant to the First Amendment to the Constitution of the United States. It is not being submitted pursuant to the 1980 Act, because that law limits judicial councils to discipline and not impeachment and removal of federal judges - which are the exclusive province of the U.S. House and Senate, respectively.

158. One of the frnest federal judges in U.S. history was Alabama's Judge Frank Johnson. More than once, Judge Johnson said that judges are not above the law and must be held accountable. If Judge Johnson were alive today, he would say that if Judge Fuller lied to the RSA or violated any criminal laws, then Fuller must be removed from federal office. Indeed, if Fuller lied or has violated any criminal laws, then Article III, Section 1 of the Constitution of the United States requires Fuller's removal from federal office.

I STATE UNDER PENALTY OF PERJURY THAT TO THE BEST OF MY KNOWLEDGE AND BELIEF, THE FOREGOING IS TRUE AND CORRECT. 28 U.S.C. § 1746.

Respectfully submitted,

PAUL BENTON WEEKS ill DATE: 07/25/03

39

EXHIBIT 1

EXHIBIT 1 ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746]

..... ) -.':'"

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gpOD MORNING Si:{,tUrday . ~~y2 .. 1998

"ltTO' ....•. 'ft}',"' -,a" >n' " . ~-~.6U· · ···s"""e·'s· ·R· ··e·a o··f 'ira' u' · ·d·· ' '' ''l''~ :: :: .; ,: .' ',' -~ -, >U~·~ .. ·' ... , ' ', : ' ' . ' , . , . ". '. .. ' ",; ,':. .: , . :t,,', ~ '. ' , ' , ' . I

·Th.e ji1ctgeriiOvedJo . $~U~Na!lCY Moore's farm time I feel free in 11 to reclaim a debt fr6rri\ait unreso Ived lawsuityea{~." 1987 . Rea '. . . J

' . B.)' Rob.erit-Keyes ' .' . '. ,sale of Moore's· 476-acre fann near sued Nancy and :; N,ews';Leader > • . ; .• , . '. 'r:;:;, Taneyville, court records show. - . . . Clovis 'Moore, . . ' . , ~ " ' . , . ..... . ' .' " .' . .. .; ~ j. " '/!'f:;t.' j 1" .. . . ' .. ... .,'. , . . . . ,. " . ;,f.Br~agY.;facuw:, ~r:imip~ .,s_e~)l<iM;,;.- ... ::, .But the sale, scheduled f?r..F'r:iday, . claiming he l~aned . '; ~buse~narges;, TaneY· C.ounty.AssOCl;';j::i l$ : on ·h.old. after a . SpecIal Judge . them money · as . · ate : tirCuit ~,Judge)?eter ,Reais~ rtow;, ,app,ointedthis week set aside ~ Rea's part ora proposed.

accused'oftrymg todefr:aud theeourtJ.- action~. .' . ' . Rea land ventUre. The • in a lawsttithe .filed llyearsago., . ' \ ' Moore/ 57, and her Wichita, Kan., ' Moores , say the . ' NCJliCY: I'-1ooreQf1;aneyvilleda~ : .attoI11eY,Paul Weeks, saythejudge's .. ' money was paid ---: Reaihas "ju!lfha,rassed-me to noendiW· t jJlirtg signals a recognition that n6t1oaned to them - as part of the m' trYing . to ' reclaiiTI- nearlY :$49;ebpI ' ~Ela jsactions are at· the very least farm pUrchase,

· Rea'said;h~ 10anedtheTarieyGoUrtty,'( "questionable. " The deal fell through 'when Rea '. . . .'. ' . . v'''v"" , r . L.'~"\JI ·News~~aaer , woman aridiler decea.sed' liusba:na( "I just want to be free of him,'; and . two business partners were N~n:cy Moore walks at ., her 416-acre farm near Tane,yYJII e. In March.. . durm,g~".19B3land ~eaL •. '. i ! •. ;;~ '; Moore said Friday ,of He,a: .. "I j,ust . J_udgePeter Rea moved to force the sale of the farm to,settlea"debt. . ' . InMarch,Reamoved to forceili~i' '. ,want to be free, and today IS the fIrst . See REA, Page9A

...... , -, ' " " . .

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- ! Page edited b'/ Chris Wrinkle; call 836-1199 after 5 p.m. Saturday. May 2. 1998 News-Leader 9A

...... : ! _w.~ _. I i FROM PAGE ONE

'il,,,i Real Moore hopes system will work for het -.- " . :::::1 Continued from lA .... . . . . '. .

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I unable to complete the $250.000 pur­chase. court records indicate.

But in 1994. after the Moores refused to procluce income·tax ree6rds to help settle the dispute, Rea received a provis ional judgment from Pulaski County Associate Judge Arthur B. Cohn. The Case had been moved to that county on a change of venue from Taney County.

Cohn's ruling did not resolve all issues in the case. Still, on March 24. Rea moved to collect on the claimed debt. which had grown to more than

., $11.2.000 with interest and fees. He ,~ i flied court papers to execute the sale

of Moore's fann.

,

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..• • .!... i

Enter attorney Weeks. Last month. he began-fIling volumes of docilments on Moore's behalf, call­ing for Pulask i County Presiding Judge Douglas E. Long J r. to quash the execution and s top the sale.

. Weeks' argument: Since there was no final judgment in the suit, there could be no execution against the Moores' land.

Weeks called Rea's actions fraud­ulent and accused the judge and his attorneys of trying to harass and intimidate Moore.

Their motive. said Weeks. is that Moore had been among 14 state's wit· nesses named in a Feb. 26 felony sex­ual·abuse charge against Rea, who has been suspended with pay since being charged.

Moore believes she was named a wi tn~ because of a sexual pass she claims Rea made at her during her divorce 30 years ago. At the time. Rea was her attorney.

After Weeks' nrst flling las t month. Rea's attorney. Richard L. Schnake. withdrew the execution, but left open the option to refLIe in the future.

Responding to Weeks' petition to. quash the execution. Schnake did not back off his assertion that Rea's

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Nancy M09re says there are a lot of memories. at the farm nestled in a valley near Taneyville. The has ~ be€n her home since 1974. Rea moved to force the sale of the farm, but a special judge set aside the action. ;~

actions were legitimate. "I am not persuaded that the cases

(Weeks) cites ... apply in a case such as this, in which the unresolved claims are wholly unrelated to those already adjudicated .... '. Schnake wrote Judge Long.

Still. the SpringrIelct attorney said Friday that he and his fum plalmed to withdraw as Rea's counsel. He would not say why. "That's between my client and me."

Weeks believes Rea and his attor· neys pulled their eX8cution only after Weeks argued it was unlawful. "Rea and his a ttorneys have s uddenly decided to turn around and nm for the woods." Weeks said. in court fll­ings.

Because of his pending withdraw­a1,Schnake had little to say about the

case. But "any allegation that Mrs. Moore or her lawyer a re making ahout me or my integrity or my pro­fession are not true," he said.

Earlier this week, umg assigned the case to Maries County Associate Judge John A. Clayton. who set aside the execution on Thursday.

Pulaski County court officials had no explanation for the change of jurlge. Long could not be reached for comment' Friday.

Clayton has s<:heduled a Tuesday afternoon conference call to cons ider Schnake's motion to . withdraw as Rea's counsel.

Rea has been asked to participate in that meeting. He could not be reached for comment Friday .

Schnake's withdrawal -would not be the flfSt in recent days for Rea.

~ ~~

William Dillow, who has repre- ': sented Rea in h is Taney Courity sexu­al-abuse charges. said Friday he with­drew las t week as Rea's attorney.

"There was a difference between : myself and my client." he said, wiih- '; out elaboration. ,­

Court records indicate Rea has not yet retained a new attorney for tJ:Jose '; charges.

Meanwhile. with the provisional judgment still pending against her, Nancy Moore is not in the clear with Rea .

But recent developments have released an ll-year burden and given her hope that the system can work , she said.

"The legal system has finally given me a chance at justice. I don't think I'm going to lose."

' . ,

EXHIBIT 2

EXIDBIT2 ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746]

Tuesday July 4,2000

11'1 wWw.OzarksNow.com

Rea commifted perjury, judg.e rules Former Taney County judge could face charges over lawsuit filed in 1987. By Kelly Heierman News· Leader

Former Taney County Judge Peter Rea could face criminal charges after a judge found Monday that he rued a false lawsuit and false atTi· davits and committed perjury.

Maries County Associate Circuit Judge John A, Clayton, who was speciaUy appointed to the Pluaskl County case, dis·

mIssed the suit and ordered Rea to pay $5,000 by Aug, 1 for "fu· ing false pleadings, false affi· davits and giving perjured testi· mony."

"This is very important because you're talking about someone who not orLly flled a false lawsuit in Missouri court

, for 12'/' years, but a person who was' a lawyer and was a Mis· souri judge, and what he

a (tempted to do was use the Missouri judi· cial system as a weapon against Nancy Moore and her de<:eased hus· R band, Clovis, ea in order to beat them out of money that belonged to them," said Paul Benton Wp.(!ks, an attorney who along with Milte Dunbar repre­sented the Moores, defendants in the suit.

Rea and his attorney, Don· ald Ingrum, de<:lined to com· ment,

Clayton's nuing in the civU case will be sent to Pulaski County Prosecittor Michael Headrick, who will consider whether to file criminal charges against Rea. Headrick was unavaUable Monday because of the holiday.

"It's like 100 years has been lifted off me,'" said Nancy Moore of Taneyville. "Fo'r 12 years and seven months , I've be-en fighting this - eVery

dime, every dollar I could dig out. l've been working two jobs my whole life ,"

In December 1987, Rea suecl the Moores, alleging that the couple owed him $49,000 on a loan he gave them. The Moores contended that the $49,000 they received from Rea was initial payment in a land.purchase venture in which Rea intended to buy the Moores' 476-acre farm for $250,000, Weeks saId.

When Rea did not come up' with the total amount due in the time the contract tillow'l(!, he

demanded his money back, Weeks said. After the Moores refused because of the condi· tions of the contract, Rea filed the suit, alleging the money was not part of the contract, but rather a loan given to the Moores In an effort to help them save their farm, Weeks said.

"Supposedly they (Rea and two business partners)' were buying all the farms on Beaver Creek and doing a Christian Coalition camp for

See REA, Page 68

Real Ruling ends 12-year fight Continued from 1 B

underprivileged kids," Nancy Moore said. "The interest rates were really high, and we had five children. We just decided to sell it." .

In 1994, Rea recei ved a provisional . judgment from ~askiCoUntyAsso· ciate Circuit Judge Arthur B. Cohn saying the Moores owed Rea the money. In March 1998, Rea moved to collect the award, then $112,000 after interest and fees.

Weeks then argued that since there was no fmal judgment in the suit, Rea could not collect.

Weeks said Rea's motive' in attempting to collect the award was that Moore was one of 14 state wit· nesses in a sexual misconduct case in which Rea later pleaded guilty.

Moore said she was a witness because of a sexual pass Rea alleged· ly made toward her during her divorce proceedings in 1969, during which Rea was her attorney.

On Friday, ruling on a motion by Weeks, Clayton determined that the suit was fraudulent.

"Plaintiff (Rea) knew at the time

he fLIed his petition that the allega· tions set forth ... were false," the fmd· ings of the judgment state.

The fmdings furth er state that "This court finds that plaintiffs answers were false and were made with the intent and purpose that this court rely on .said statements."

The decision ended the uncertaIn future of Moore's farm and a long ' court battle.

"Independence Day came a day early," Moore said. "I can't even tell you how I feel 7"" relieved, happy. I don't know - just elated."

In November 1998, Rea pleaded guilty to four counts of misdemeanor sexual misconduct. In a plea agree­ment, he received a one-year SllS­

pended sentence on each charge. He also is serving two years' unsuper­vised probation, resigned his posi· tion as as associate circuit judge and surrendered his license to practice law in Missouri. Also ordered to pay $11,631 in court costs, Rea fLIed a pay· ment plan earlier this year, Mark Orr, special prosecutor in the case, said.

In 1997, Rea appointed special prosecutors to investigate Taney County Clerk Ron Houseman and Collector Dwain Basham regarding money they received for collecting property taxes for several cities in the County. A judge later ruled that Rea did not have aulliority to appoint the speCial prosecutors. The charges of .stealing were dismissed and defamation suits were filed against Rea.

Moore does not want Rea to spend time in prison if criminal charges are filed against him. She says since her husband forgave Rea before his death in 1995, she could forgive him, too.

''I'm just grateful that this is over and he can never do this again to any other family," Moore said. "I never gave up because I knew I was right and I knew someone had to stand up to Pete and no one else in the county ever seemed to follow through or fin· ish. [ knew Pete Rea before all this and I guess that 's where my compas­sion comes from. I can't see anything I would gain by holding malice in my heart."

EXHIBIT 3

EXHIBIT 3 ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746]

REA v. MOOIU': IV10.'~~ Cite as 74 S.W.3d 795 (Mo.App. S.D. 2002)

of $1,648.00 monthly; thereafter, the

Def shall pay the . sum. of $1827.00 '. '

monthly; Def shall be allowed to claim

the children as dependents for tax pur­

poses provided that Def has fully paid

his child support for the tax year. The remainder of the Courts finding and

judgment remain as stated. JDW

Thomas appeals. In his four points re-lied on, three of those points attack the award of child support described in the November 9, 2000, docket entry. The re­maining point relates to the award of "per­manent maintenance."

Rule 74.01(a),zin part, reads:

"Judgment" as used in these rules includes a decree and any order from which an appeal lies . A judgment is rendered when entered. A judgment is entered when .a writing signed by the judge and de.rwminated "judgment" or "decree" is filed:

(Emphasis addep.) ": .

The' docket . ~iftry . heh~fails · to ·· satisfy two requiremen:ts for 'a judgmeAt:' in Rule 74.01(a). Fil'st,the entr-yis not signed by the judge.3 Second, the entry is not de­nominated a "judgment."

The word "judgment" is used twice in the docket entry,,Qut each time the word is used only with .reference to the original judgment of dissolution of marriage. Un­der identical circumstances, in Hoy v. Hoy, 961 S.W.2d 128 (Mo.App.1998), this Couri held that a docket entry using the word "ju9gment" only with reference to an ear'li­er judgment "does not satisfy the require­ment of Rule 74.01(a) that the ~'Titing be denominated a 'judgment.' " [d. at 129.

2. Rule references are to Missouri Court Rules (2001)

3. In Kessillger v. Kessinger, 935 S.W.2d 347. 349 (Mo.App.1996), this Court held that a judge's handwritten initials satisfy the reo

See also City of St . . Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997).

Because the docket entry is not signed

by the judge and is not denominated a "judgment," it is not a judgment as re­quired by Rule 74.01(a). Consequently,

this Court lacks appellate jurisdiction and must dismiss the appeal. Ball v. Shan­non, 964 S.W.2d 858, 859 (Mo.App.1998).

Appeal dismissed.

SHRUM, P.J., and BARNEY, C.J.,

concur.

Peter H. REA~ . Plaintiff-Appellant,

. v.

Nancy MOORE~ "; Individually and .as Personal Rept~s~htati~e of the Estate of Clovis M01te, Defendant-Respon­dent.

No. 23795. ~

Missouri Court of Appeals, Southern District,

Division Two . .

Jan. 25, 2002.

Motion for Transfer and Denied Feb. 13, 2002.

Landowner tiled motion for sanctions against neighbor for making false allega­tion in petition relating to lawsuit neighbor

quirement of Rule 74.0 I (a) that the judgment be "signed by the judge" However. neither a signature nor handwritten initials appear on the docket entry in this case.

796 Mo. 74 SOUTH WESTERN REPORTER, 3d SERIES

had brought against landowner, for perju­I'y, and for making false ' statements in affidavit The Circuit Court, Pulaski Coun­ty, John A. Clayton, J.,granted motion~ Neighbor appealed. The Court of Appeals, held that; (1) trial court was justified in imposing sanctions under th~ court's inhet­ent powers, and (2) court could not consid­er claim that trial court abused its discre­tion in setting aside the previ?usly entered judgment by failing to identify good cause for the action.

Affirmed.

1. Appeal and Error e:>984(1)

Court of Appeals reviews imposition of sanctions under an abuse of discretion standard, since trial court may, at its dis­cretion, impose sanctions when they are justified, considering the conduct of the parties and counsel.

2. Appeal and Error e:>946

Abuse of discretion OCCUF.$ when the court's order is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of jus­tice and indicate a lack of careful consider­ation.

3. Appeal and Error e:>768

Scope of ' the issue for detennination on appeal is that framed in the point relied on.

4. Appeal~nd Error e:>758;3(1)

Court of Appeal's review is restricted to issue raised in point relied on, even if appellant raises issues outside the scope of the point relied on. ,

5. Costs e:>2 '

Record did not support neighbor's claim that trial court abused its discretion by invoking its inherent powers to impose sanctions for flling a frivolous lawsuit, where neighbor was not accused of filing a

frivolous lawsuit, there was no rmding that neighbor had filed a frivolous lawsuit,'and trial court imposed sanctions on neighbor based on the false pleadings, false affifla­vits, perjured testimony and fraud.

6. Costs e:>2 ; " . . '

Safe, harbor provision, which prohiQits filing of motion for sanctions with trial court before 30-days after serving motion on the other party, is stringently follo~~a when sanctions are sought under rule goy,., erning parties' documentary representa~

" , , - ' ~;~

tions to the court. V.A.M.R. 55.03(b, c), <. ". J :

7. Costs e:>2

Intention of the 30-day safe harbor provision is to allow the , party ag;1,inst whom sanctions are sought an opportunity to correct violations of rule governing Pilr­ties' documentary representations ' to · the court, t~reby " conse(Ving judicial re­sources if such corrective action is taken. V.A.M.R. 55.03(b).

8. Costs e:>2

Even though 30-day safe harbor pro~ vision of rule governing parties' documen­tary representations to the court was not followed, trial court was justified in impbs~ ing sanctions under the court's inher,ent powers, based on fraud, false pleadings, false affidavits ,and perjured testimony

i '

found by trial comt.

9. Costs e:>2 !' t{ :

Any' sanctions imposed under th~

court's inherent powers should be limi~d to those situations in which it is reasonably necessary to preserve the courts' exJsten:c~ and protect it in the orderly administr~tion of its business.

10. Costs e:>2

Clear and convincing standard of proof was the appropliate standard of proof in suit seeking sanctions for fljing

REA v. MOORE Mo. 797 Cite as 74 S.W.3d 795 (Mo.App. S.D. 2002)

false pleadings, false affidavits and per­

jured testimony.

11. Appeal and Error <&=>775

AppeUate courts favor a disposition on

the meril"\ where possible, particularly

when such disposition of the merits is not

hampered by violation of appellate rule.

12. Appeal and Error <&=>422

Missowi courts are , lenient with re­

spect to the failure of notice of appeal to

specify the judgment or order appealed

from, so long as the iack of specificity does not prejudice the other party.

13. Appeal and Error <&=>422

Leniency with respect to the failure of notice of appeal to specify the judgment or

order appealed from does not apply when the ' notice , of appeal only lists one judg­

ment or order" but the points on appeal refer to more than one judgment or order.

14. Appeal and Error <&=>422

Court of Appeals review was confined to the judgment specified in the notice of appeal, and thus, could not consider claim that trial coUrt abused its discretion in setting aside the previously entered judg­ment by failing to identify good cause for the action, where notice of appeal men­tioned only judgment for sanctions, and not earlier order granting motion to set aside judgment.

Peter H. Rea, pro se.

Paul Benton Weeks, III, Springfield, for

respondent.

J . Unless otherwise noted, all references to rules are to Missouri Rules of Civil Procedure (200 l),

Before GARRISON, P.J., PREWITT,

J., and RAHMEYER, J.

PER CURIAM.

Peter H. Rea ("Appellant") contends on

appeal that the trial court abused its dis­

cretion by (1) entering a judgment against him for , sanctions based on an inherent power to do so, and failing to follow the statutory requirements of Rule 55.03,1 and (2) setting aside a previously entered judg­ment without specifying good cause ' for doing so. ' For the reasons outlined below,

we afflrm the trial court's decisions.

This case stems from an action fIled by Appellant in December 1987 in which he

claimed, in pertinent part" that he had loaned or advanced $49,000 to Clovis and Nancy Moore ("Respondent,,).2 Respon­

dent maintained that the amounlc; paid by Appellant were not loans, but rather mon­eypaid for an option to purchase property from Respondent. An. amended petition fIled by Appellant on March 28, 1991 con­tained five counts, three of which related to the $49,000. The fourth count waS a claim for trespass to personal property, and the fifth count involved another $25,000 debt Respondent allegedly owed Appell::mt. Respondent's answer included a counterclaim seeking damages resulting from Appellant allegedly failing to keep a bull fenced within his own property.

On January 13, 1994, the trial judge entered what he termed a final judgment, finding for Appellant on the three counts involving the $49,000, which the cowt de­termined was "as a result of loans ." The judgment also noted that Appellant dis­missed the fourth count without prejudice. Respondent appealed to this Court and that appeal was dismissed for lack of ap-

2. Clovis Moore passed away in \994 or 1995 and thereafter Nancy Moore was li sted in the litigation as an individual and personal repre­sentative of the es tate of Clovis Moore ,

798 Mo. 74 SOUTH WESTERN REPORTER, 3d SERIES

pellate jurisdiction based on our determi­nation that the order was not a final judg­ment, in that neither Appellant's futh count nor Respondent's counterclaim had been resolved and there had been nO find­ing of "there is no just reason for delay" as authorized by Rule · 74.01(b). See Rea v. Moore, 891 S.W.2d 874, 875 (Mo.App. S.D. 1995).

On April 17, 1998, Respondent . filed a letter and supporting documents with the trial court s~ggesting that AppelJant had committed fraud on the court. She al­leged that documents from another case in which Appellant was a party indicated the money Appellant claimed was paid to Re­sp~ndent as loans was in fact ~oney Ap­pellant had paid Respondent toward the purchase of 'Respondent's property. Based on that information, . Respondent filed a motion on June 1,1998 to set aside the judgment preViously entered in the caS~. A hearing was held on August 26, 1998, and on September 22, 1998, the trial court entered an order in which Appel­lant's remaining unresolved count and Re­spondent's counterclaim were dismissed for failure to prosecute: The order also granted Respondent's motion to set aside the previously entered judgment that in­volved the three counts relating to the $49,000 in alleged loans:

. On September 28, 1998, Respondent filed a motion for sanctions against Appel­lant . "pursuant to [Rule] 55,03 and the inherent powers of [the][cJourt." In the motion, Respondent accused Appellant of committing p.erjury and of attempting to perpetrate a fraud on the court by fIling a lawsuit that was "false, fraudulent . and. without basis in fact." On APli16, 2000, Appellant sought to dismiss all pending claims without prejudice. AppeUant later filed a petition for writ of prohibition with this Court to prevent the triar court from hearing Respondent's motion for sanctions.

AppelJant's petition was denied on June 27 . ,

2000. Appellant also filed a writ of pro hi-bition with the Missouri Supreme Court, which was denied on June 29, 2000~

The trial court held a hearing on the motion for sanctions on June 30, 2000. On July 3, 2000, the trial court entered · a judgment for' sanctions· finding Appellant made false allegations in his petition, mad~ false statements in affidavits, and . gave perjured testimony regarding the transac­tions Appellant claimed were loans . . The trial court concluded that given its "inher~ ent power, right and duty to take th'ai action which is necessary to protect the integrity of the judicial process['] ; .. ·: , [w]hen false pleadings are filed, false affi~ davits are filed or perjured testimony [is) given it is the duty of the [c]ourt to impose sanctions on· the offending' P;3.rty or ~ther participant." Further, the court · dete~~ mined that although Respondent · did re­ceive benefit from the money paid by Ap­pellant, such did "not excuse or justify [Appellant's] acts of fraud on the [c]ourt." AppelJant was ordered to pay $5,000 to the registry of the court as a ·sanction for the false pleadings, false affidavits and per~ .

jured testimony. The court also rejected Appellant's attempted voluntary dismissal of his claims, instead dismissing all of Ap~ pellant's remaining claims With prejudice: Here, Appellant identifies the judgment, or order appealed from as the judgment . for sanctions entered July 3, 2000.

AppeUant's flrst point on appeal charges that the trial court abused its discretion by invoking its inherent powers to impose sanctions for filing a frivolous pleading because Respondent initiated the sanctions pursuant to Rule 55.03 and the require~

ments of that rule were not met. Specifl­cally, Appellant claims that the trial court did not have jurisdiction to impose sanc­tions because the safe harbor provision of Rule 55.03, under which a party must wait

- -_._- --------------- ----~--

REA v. MOORE Mo. 799 Cite as 74 S.w.3d 795 (Mo.App. S.D. 2002)

thirty days after serving the motion on the party against whom sanctions are sought before filing the motion with the court, was not met. See Rule 55.03(c)(1)(A); Robin Farms, Inc. v. B artho lome, 989 S.W;2d 238, 250 (Mo.App. W.DJ999).

[1,2] We reView under an abuse of discretion standard, since "{a] trial court ... may, at its discretion, impose sanctions when they are justified, con~idering the conduct of the p~rties and ·counsel." Fos­ter v. Kohm, :661 S.W.2d 628,631 (Mo.App. ~.D.l983), This is t,ne s:;tmestandard used when a coUrt impo~es sanctions based on Rule 55.03(c). See Brown v. Kirkham; 23 S.W.3d 880:882 (Mo.App.W.D.2000). i'An abuse of discretion occurs ~hen the court's order is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of jus­tice and indicate a lack of careful consider­ation." ld: at 882-83.

[3, 4] Before discussing our analysis of Appellant's first point, we note that the

. point itself defines the boundary of our review. See State v. Stringer, 36 S.W.3d 821, 822 (Mo.App., S.D.Z001). "The scope of the issue for determination on appeal is that framed in the poin~ relied on." .Id. Within the argument portion of his brief, Appellant raises issues outside the scope of the point relied on. ctOur review is re­stricted to the issuers] raised in the point relied on." State ex rel.Wilson v. Brown, 897 S.W.2d 171, 173 (Mo.App. S.D.1995).

(5] In Appellant's first point, he claims that the trial coUrt abused its discretion by invoking its inherent powers to impose sanctions for filing a frivolous lawsuit. However nowhere in the motion for sanc­tions was Appellant accused of filing a frivolous lawsuit and nowhere in the judg­ment for sanctions did the trial court con~ clude that sanctions were necessary based on Appellant's filing of a frivolous lawsuit.

In fact, there was no finding that Appel­lant had fIled a frivolous lawsuit. ' Within the judgment for sanctions" the trial court rendered findIngs that Appellan~ had filed false pleadings and false affidavits as well as given perjured testimony. FUrther, the trial court based the sanctions on the false pleadings, false affidavits, perjured testi­mony and Appellant's "acts of fraud:; Therefore, there iSJlo support in the rec­ord for Appellant's contention as stllted in his point relied o/).

[6~81 In addition, ' Appellant's claim that only Rule 55.03 can be used by the trial court in its imposition of sanctions or that Rule 55.03 was the only basis on which Respondent made its motion for sanctions is incorrect. Appellant is correct that Missouri law is stringent in itsre­quirement that the safe harbor provision of Rule 55.03(c) be followed when sanctions are imposed for Violations of Rule 55.03(b). Robin Farms, 989 S.W,2d at ' 250. "This rule prohibits a movant for sanctions from filing its motion with the . trial court before the thirty"day period after serving the mo­tionon the other party has expired." Jd. The intention of the' safe harbor provision is to allow the party against whom sanc­tions are sought an opportunity to correct violations of Rule 55.03(b), "thereby con­serving judicial resources if such corrective action , is taken." 'd. " Appellant is also correct that the safe h;rrbor provision pf that Rule was not followed here. Howev­er, the first ,line of Respondent's motion for sanctions states that the motion is made purs~ant to Rule 55.03 and the in­herentpowers of the court. The judgment for sanctions clearly indicates on its face that the trial court was not proceeding pursuant to Rule 55.03, but rather it was relying on its· responsibility to impose sanctions for false pleadings, false affida­vits and perjured testimony on its "inher­ent power, right and duty to take that

800 Mo. 74 SOUTH WESTERN REPORTER, 3d SERIES

action which is necessary to protect the integrity of the judicial process."

[9] Although Missouri· cases do not seem to address the issue of the appropri­ateness of using the court's inherent power to impose sanctions versus the use of Rule 55.03, Missouri case law does provide sup­port for the use of a colirt's inherent pow­ers to address particular issues before it. See Higgins v . . Director of Revenue, 778 S.W.2d 24, 26 · (Mo.App. S.D.1989). Mis­souri courts are cautioned to exercise their inherent powers "sparingly, wisely,tem­perately, and With judicial self-reptrainL" Id. Any sanctions imposed under the couri's inherent powers should be limiteg to . those situations in which it is "reas</n­ably necessary to preserve the courts' exis­tence .and protect it in the orderly adminis­tration of its business." ld.

Federal courts have addressed the inter­play between Federal Rule of Civil . Proce­dure 11 (2001) and a court's inherent pow­er. . See Chambers v. NASCa, lne;,501 U.S. 32, 50, III S.Ct. 2123, 2136, 115 L.Ed.2d 27, 49 (1991);Popev. Federal Express Corp., 138 . F.RD. 675, 681~3

CW.D.Mo.1990). Since . Federal Rule 11 and Missouri Rule 55.03 are nearly verba­tim, the analyses and conclusions of these cases are instructive to the analysis here.

In Chambers, the · United States Su­preme Court foundlhat the district comt did not abuse its discretion when it resort­ed to its inherent powers to impose sanc­tions for bad faith conduct: 501 U.S. at 50, 111 S.CL at 2136, 115 L.Ed.2dat 49. The Court determined bad faith conduct was not covered by the Federal Rule 11 sanc­tioning provisions. Id.; see also Corley v. Rosewood Care Ct'r., Inc., 142 F.3d 1041, 1058-59 (7th Cir.1998) (Court determined no bad faith conduct and thus wasneces­sary to impose any sanctions according to Federal Rule 11 rather than inherent pow­ers). The Court in Chambers went further

and noted that a federal court Was not forbidden from using its inherent pOwe~ rather than a statute or rule, even if SOnie of the conduct was covered by a statute· or rule. Id. 501 U.S. at 50, III S.Ct. at 213& . , 115 L.Ed.2d at 49. .. For example, the Court noted Federal Rule 11 could have been used to sanction the party for ~'ruiIlg 'fal~e and frivolous pleadings.''' I d. How~

ever, the Court determined that the "en­tire course ,~f conduct throughout the l~w~ suit evidenced bad f:;lith and an at~mpttQ perpetrate a fraud, on the court, andth~ conduct sanctionable under the Rul'es\.v~ inter~ned within conduct that only : t~~ . . . . . . . . . .'/ \

inherent power could address ." Id. 50i U.S. at51, IiI S.Ct. at 2136, '115 L.Ed.2d

." .' ."'

at 49. 0

In Pope, the court found that the a~tion~ of a party to the litigation "constitute[~] bad faith and abusive conduct . . . and~n attempt to perpetrate a fraud on th~

court." 138 F.RD. at 683. Therefore, the court concluded it was appropriate for it to "impose sanctions against plaintiff pu:rsti~ ant to its inherent ' equitable 'power to do so." Id. The court arrived at this conchi~ sian after analyzing the various Federal Rules, including Federal Rule 11, under which sanctions coUld be imposed. 14- at 681-82. ..

In Aoude v. ' MobilOil Corp., 892 F,2q 1115, 1118 (lst ~ir.1989), the coW"t defined fraud . on the court as occumng when l'it can be demonstrated, clearly and convinc~ ingly, that a party has sentiently set in motion some unconscionable scheme calcu­lated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or un~ fairly hampering . the presentation of th~ opposing party's claim or defense." Fur~

ther, the couri noted "that a federal dis; trict court possesses the inherent power to deny the court's processes to one who defiles the judicial system by committing a

REA v .. MOORE Mo. 801 Cite as 74 S.W.3d 795 (Mo.App. S.D. 2002)

fraud on the court." I d. Among the bad faith conduct apparent in the case was the flling of false pleadings and documents. Id.

[10] In the instant caSe, the trial court concluded the "[f]acts supporting sanctions for filing false pleadings, false affidavits and perjured testimony must meet the clear and convincing' standard of proof." We find that was the appropriate standard of proof and that the evidentiary documen­tation and testimony before the court met that standard and provided substantial evi­dence to support the judgm,ent in issue. Additionally, we note that the actions found by the trial court to have been com-

I' ,

mitted by Appellant were not fully covered by Rule 55.03, and thus justified the impo­sition of sanctions under the c.ourt's inber­ent powers. S ee Foster, 661 S.W.2d at 631. ' Based on the fraud, false pleadings, false . affidavits and perjured testimony found by the trial court, the use of its inherent power was appropriate as the "ju­dicial function [was] integrally threat-

. ened ." Higgins, 778 S.W.2d at 26. Appel­lant's first point is denied .

Appellant's second point . charges that the trial court abused its discretion in set­ting aside the previously ehtered judgment by failing to identify good cause for the action. In Appellant's notice of appeal, the only judgment or order from which he appeals is the July 3, 2000 judgment for sanctions. · The notice of appeal does not list the September 22, 1998 order, which in part granted Respondent's motion to set asid.e the previously entered judgment.

[11-13] Pursuant to Rule 81.08, the judgment or order from which ' the appeal is made; is among the items that must be specified in the notice of appeal. See Rule 81.08(a). Missouri appellate courts favor a disposition on the merits where possible, particularly when such "disposition of the merits is not hampered by the rule viola-

tion." Williams v. MFA Mut. Ins. Co., 660 S.W.2d 437, 439 (Mo.App. E.D.l983). Further, Missouri cases have shown a le­niency with respect to the failure to specify the judgment or· order appealed from, so long as the lack of specificity does not prejudice the other party. See id, How­ever, that leniency has occurred primarily in cases where the appellant sought to appeal one judgment or,' or<:ler; Missouri appellate courts have nqt shown such le­niency when the notice of appeal only list­ed one judgment or order, but the points on appeal refened to more than one judg­ment or order. See Anderson v. Anderson, 869, S.W.2d 289, 292 (Mo.App. S.D.1994); Erickson v. Pulitze1' Pub. Co., 797 S.W.2d 853, 858 (Mo.App. E.D.1990).

In Erickson, the appellant stated in his notice of appeal that he was appealing from a grant of summary judgment for the respondent and attached the order grant­ing the summary judgment motion to the notice of appeal; however, he left the area marked "Judgment or Order Appealed From" blank. .797 S.W.2d at 858. In ad­dition, no reference was made in his notice of appeal to an earlier judgment, although an alleged enor in that judgment was the basis for one of his points on appeal. fd. The appellate court determined that since the notice of appeal only refened to the grant of the summary judgment, its review was confined to that one judgment. fd.

In Anderson, the appellant's notice of appeal only refened to the trial court's depial of his motion to obtain relief pursu­ant to Rule 74.06, and not to an earlier default judgment entered by the court. 869 S.W.2d at 291- 92. Similar to Erick­son, the appellant in Anderson complained about the default judgment in some of his points of alleged enor. [d. at 292. The appellate court followed Erickson and de­termined it must confIne "its review to the

802 Mo. 74 SOUTH WESTERN REPORTER, 3d SERIES

judgment specified in the notice of appeal." ld.

[14] Our situation here tracks very closely to the circumstances described in Erickson and Anderson; thus, we will fol­low their precedent. The judgment is af­fInned.

In re the MARRIAGE OF lana Leigh ECHESSA and Rajah Tongwa

Ethessa.

Jana Leigh Echessa, Respondent" ,

v.

Rajah Tongwa Echessa, Appellant.

No. 24307.

Missouri Court of' Appeals, Southern District,

Division One.

March 12, 2002.

Motion for Rehearing or Transfer Denied April 3, 2002.

Husband fued motions for new trial and rehearing following judgment and de­cree of dissolution of marriage. The Circuit Court, Greene County, Don E. Burrell, Jr., J ., denied husband's motions. Husband ap­pealed. The Court of Appeals, Robert S. Barney, C.J., held that husband agreed to tenns of stipulated settlement that was incorporated into judgment, and thus he could not appeal that judgment.

Appeal dismissed.

1. Pleading e=>4

A pleading is not judged by its titl~ but by its substance and its content.

2. Appeal and Error e=>977(1)

New Trial ~6

A trial ' co~rt is afforded broad discre': tion in awarding a n'ew trial, and its rullIlg will not be dist~l'bed u~less that discreti~rl

, ' , .." ' • .. ;J' was abused. V.A.M.R. 78.01. "

3. Divorce e:=>146

A reheaTIng before a family coJf1 judge is discretionary; the statute gove~~ ing a rehearing before a family court judie proVides no automatic right of ' revi:e~t , . , ', _if V.A.M.S. § 487.30; VA.M.R. l29.11.

4. Appeal and Error e=>110

A denial of a motion for ne"" trial, i$ not' an appealable order, but appeal must be taken from the judgment to which mo~ tion was directed.

5. Appeal and Error e=>110

Denial of a motion for rehearing be~ fore trial court does not present an issue for review on appeal.

6. Divorce e=;:>179

Husband agreed to tenns of stipU~

lated settlement that was incorporated jnW judgment and decree of dissolution of mar~ riage, and thus husband could not appeal that judgment, although husband claimed that settlement was procured by fraud of his attorney, where husband waS able to understand legal proceedings, husband testified that he agreed to settlement, and purported acts of attorney, being negli~

gent, not fraudulent, were imputed' to client.

7. Appeal and Error ~1

The right to appeaJ In Missouri' is statutory. VA.M.S. § 512,020.

EXHIBIT 4

EXHIBIT 4 ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746]

412 324 FEDERAL SUPPLEMENT

BASS ANGLER SPORTSMAN SOCIETY, Plaintiff,

v.

UNITED STATES STEEL CORPORA· TION et al., Defendants.

Civ. A. No. 70-733, N. D. Ala., S. D.

BASS ANGLER SPORTSMAN SOCIETY, Plaintiff,

v. A VONDALE MILLS et aL, Defendants.

Civ. A. No. 3124-N, M. D. Ala., N. D.

BASS ANGLER SPORTSMAN SOCIETY, · Plaintiff,

v. STAUFFER CHE~IICAL COMPANY

et al., Defendants.

Civ. A. No. 6290-7G-T, S. D. Ala.

United States District Court. Feb. 8, 1971.

Proceeding on motions to dismiss action wherein plaintiff sought imposi­tion of fines against corporate defend­an ts for alleged violations of statu te gov­erning deposit of refuse in navigable wa­ters and against governmental defend­ants for aiding and abetting such viola­tions . The District Court held that stat­ute allowing a person furnishing infor­mation leading to conviction for wrong­fuldeposit of refuse in navigable waters to share in any fine imposed is not a basis for implying some private right of enforcement with respect to depositing of refuse in navigable waters; accord­ingly, private plaintiff could not main­tain action to recover fines against cor­porate and governmental defendants, even though action was designated as a "qui tam action," since statutes govern­ing offense create a criminal liability and can only be enforced by government.

Motions granted.

1. Navigable Waters <&=>35 Statute allowing a person furnish­

ing information leading to conviction for wrongful deposit of refuse in navigable

waters to share in any fine imposed is not a basis for implying some private right of enforcement with respect to depositing of refuse in navigable waters. Rivers and Harbors Appropriation Act of 1899. §§ 9 et seq., 13, 16, 33 U .S.C.A. §§ 401 et seq., 407, 411.

2. Action <&=>5 Criminal statutes cannot be enforced

by civil actions.

3. District and Prosecuting Attorneys <&=>7 (1)

Criminal statutes can only be en­forced by proper authorities of United States Government; a private party has no right to enforce such statutes.

4. Criminal Law <&=>4 District and Prosecuting Attorneys

<&=>8 Mandamus "G=>61

Executive Branch through Justice Department and U. S. attorneys is charg­ed with enforcement of federal criminal law and in this area has broad discre­tion in determining whether or not to prosecute; in exercise of such discretion, U. S. attorneys are immune from con­trol or interference through mandamus or otherwise by private citizens or by courts.

5. Penalties e=>16 A "qui tam action" lies only when

expressly or impliedly authorized by statute to enforce a penalty by civil ac­tion, not a criminal fine.

See publication \Yords and Phras es fo r 0 the r judicial const ructions and de finition s.

6. Action e=>13 Even where some statutory language

seems to grant a private · right of ac­tion , if same or related statute also clear­ly places enforcement in hands of gov­ernmental authorities, right of action is exclusively vested in such governmental authority.

7. Navigable Waters ~35 No authority existed for private

plaintiff to maintain an action against corporate and governmental defendants to recover fines provided by statutes

BASS ANGLER SPORTSMAN SOC. v. uNITED STATES STEEL CORP. 415 Cite as 324 F.Supp. 412 (1971)

mation which shall lead to conviction. are immune from control or interference (emphasis added). through mandamus or otherwise by pri-Beyond doubt, section 407 established vate citizens or by courts. Smith v.

a crime and section 411 establishes crimi- United States, 375 F.2d 243 (5th Cir. nal sanctions to be imposed for its viola- 1967); United States v. Cox, 342 F.2d tion. 167 (5th Cir. 1965).

[1] Plaintiff relies solely upon the [5,6J Plaintiff's denomination of last phrase of section 411 allowing a per- this suit as a -"qui tam" action adds son furnishing information leading to nothing to its right to enforce a criminal conviction to share in any fine imposed statute such as § 407. Historically a qui as a basis for implying some private tam action is one brought by an informer right of enforcement. Such an implica- under a statute which establishes a pen­tion runs counter to the clear import of alty or forfeiture for the commission or the statute which establishes a reward omission of some act, and which addi­but not a right of private enforcement. tionally provides for the recovery of the Such an implication would also run con- same in a civil action with part of the trary to fundamental principles of crimi- recovery to go to the person bringing nal law. the action. None of the many cases cited

[2J First, criminal statutes cannot be enforced by civil actions. United States v. Claflin, 97 U.S. 546, 24 L.Ed. 1082 (1878); United States v. Jourden, 193 F. 986 (9th Cir. 1912). Serious con­stitutional problems are encountered in any attempt to impose criminal sanc­tions by way of civil procedures. See Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938), and Lipke v. Lederer, 259 U.S. 557, 42 S.Ct. 549, 66 L.Ed. 1061 (1922) .

[3, 4J Equally important is the firm­ly established principle that criminal statutes can only be enforced by the proper authorities of the United States Government and a private party has no right to enforce these sanctions. See Keenan v. McGrath, 328 F.2d 610 (1st Cir.1964), and Pugach v. Klein,193 F. Supp. 630 (S.D.N.Y.1961). It has been repeatedly held that the Executive Branch through the Justice Department and U. S. Attorneys is charged with enforcement of federal criminal law and in this area has broad discretion in determining whether or not to prosecute. In the ex­ercise of such discretion U. S. Attorneys

2. 33 l' .::-:.C. § 413 prol'id~" that "TIle De!Jartment of Justi('~ "hall conduct till' legal proc-eedings necessar.,· to rnforre the provisions of sections • • • 407

,. 411 of tliis title *' • *'''

in briefs approved a qui tam action to collect a criminal fine. All involved civil penalties or forfeitures. All of the qui tam cases also recognize the statutory

'origin of the right of action. It arises not from a statutory right to share in

. the penalty but from the express or im­plied statutory grant of authority to maintain the action. Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868). A corollary to this principle is that even where some statutory language seems to grant a private right of action. .if the same or a related statute also clear­ly places enforcement in the hands of gov­ernmental authorities the right of action is exclusively vested in such govern­mental authority.2 Williams v. Wells Fargo & Express Co., 177 F. 352 (8th Cir. 1910); Rosenberg v. Union Iron Works, 109 F. 844 (N.D.Calif.1901).

[7,8] The court concludes that no authority exists for plaintiff to maintain this action to recover fines provided by sections 407 and 411.3 These sections create a criminal liability. No civil ac­tion lies to enforce it; criminal statutes can only be enforced by the government.

3 . . In Durning ,'. ITT Rtly()ni~r. In<: .. CA \'0.9070 (W.D.\\"a!'h. Oct. :>. 1~7(1 i . rhe only similar action of which thi~ ('oUr! is aware. a motion to dismiss plaintiff's complaint was granted 0n the ground that there was no right of pri"ate a("

tion under 411 for II \'iolation of 407 .

. ", ", ""- :" .~" .. ".

416 324 FEDERAL SUPPLEMENT

A qui tam action lies only when expressly or impjiedlyauthorized by statute to en­force a penalty by civil action, not a crim­inal fine. The express mandate of sec­tion 413 in placing enforcement of sec­tions 407 and 411 in the Department of Justice prevents any interpretation cre­ating a private right of action to recover the specified fin~s.

[9-11] It is equally clear that under the facts of this case plaintiff is entitled to no injunctive relief. The only ground alleged in support of plaintiff's prayer for such relief is that the defendants are guilty of violating a criminal stat­ute. It is generally held that an injunc­tion is not a proper remedy · for the en­forcement of criminal laws. In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092, 1094 (1895); United States v. Jalas, 409 F.2d 358 (7th Cir. 1969); Nasif v. United States, 165 F.2d 119 (5th Cir. 1948). Because injunctions are extraor­dinary rePledies they should be granted sparingly, and under strict rules. Reli­able Transfer Co. v. Blanchard, 145 F .2d 551 (5th Cir. 1944).

[12] An effort to restrain activities of the defendants alleged to be in viola­tion of section 407 is no less an enforce­ment of that section than the imposition of criminal sanctions. The language of section 413 is unrestrictive in commit­ting all enforcement powers exclusively to the Department of Justice and bars the injunctive aspect of this action as ef­fectively as it bars the aspect in which fines are sought to be imposed. The rea­sons for placing exclusive enforcement of criminal statutes in the pr.oper govern­mental officials are even more applica­ble to enforcement of such statutes by injunction. Even assuming that, under extraordinary circumstances not here shown, the Justice Department could en­force section 407 by injunction, this plaintiff shows no interest in its en­forcement different from that of the public in general and, thus, has no right to such relief.

The reasons hereinabove discussed re­quiring dismissal of this action as to the

corporate defendants are equally applica­ble to the relief sought against the gov­ernmental defendants. Moreover, the re­lief requested by the plaintiff against the Secretary of the Army and Chief of the Corps of Engineers, described as group B defendants, was that a perma­nent injunction issue requiring them to establish and apply standards for the issuing of permits allowing the dumping of refuse into the navigable waters and tributaries thereof within the State of Alabama. Such request must be con­strued as being for a writ of mandamus under 28 U.S.C. § 1361 because the re­lief sought would compel an officer of the United States to perform an affirma­tive action.

[13] Such writ will issue only if the act to be compelled is ministerial and so plainly prescribed as to be free from doubt. United States v. Walker, 409 F. 2d 477 (9th Cir. 1969), and cases cited therein.

[14J Examination 01'33 U.S.C. §§ 407 and 419 reveals that the establishing of a permit program by the Secretary of the Army and the Chief of the Corps of Engineers is discretionary with them as opposed to mandatory. Section 407 states:

That the Secretary of the Army, when­ever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may per­mit the deposit of any material above mentioned in navigable waters . * *

Section 419 authorizes and empowers the Secretary of the Army to prescribe regu­lations under the Act but does not re­quire him to do so. Accordingly, a writ of mandamus will not issue. Since 28 U.S.C. § 1361 does not authorize this

. action, it exists as a suit against the sovereign to which the sovereign has not consented, Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Malone v.Bowdoin, 369 U.S. 643, 82 S. Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic and Foreign Commerce Cor­poration, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), and accordingly

UNITED STATES v. ORTIZ Cite I\S 324 F.Supp. 41, (1971)

417

the motion to dismiss must be sustained on all three grounds thereof.

For precisely the same reasons such action is due to be dismissed as to the State of Alabama Water Improvement Commission and R. L. Meyers, its chair­man. To the citations of cases in the preceding paragraph are added Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1889); Simons v. Vinson, 394 F.2d 732 (5th Cir. 1968); Gardner v. Harris, 391 F.2d 885 (5th Cir. 1968).

An order will be entered dismissing the action and taxing costs against the plain­tiff.

UNITED STATES of America

\'.

Arcadia ORTIZ and Margarita Martinez, Defendants.

No. 68 CR. 3!Wi.

United States District Court, S. D. New York.

Feb. 9, 1971.

Prosecu tion for uttering false or forged postal money order. The District Court, Tenney, J., held that defendant charged in indictment with uttering forged postal money orders knowing that the signature of the purchaser on each such money order was false and forged and that material alteration had been falsely made on each such money order by the imprinting thereon of a counterfeit issuing office stamp could not be convicted on proof that she ut­tered false and forged money orders with knowledge that endorsements there­on were forged, and court could not amend indictment to conform to the evi­dence on theory that discrepancy be­tween evidence and indictment was only an immaterial variance.

Defendant acquitted. 324 F.Sup~-27

Forgery <t::=>34(2) Indictment and Information ~160

Defendant charged in indictment with uttering forged postal money or­ders knowing that the signature of the purchaser on each such money order was false and forged and that material alter­ation had been falsely made on each such money order by the imprinting thereon of a counterfeit issuing office stamp could not be convicted on proof . that she uttered false and forged money orders with knowledge that endorse­ments thereon were forged, and court could not amend indictment to conform to the evidence on theory that discrepan­cy between evidence and indictment was only an immaterial variance. 18 U .S.C. A. § 500.

Whitney North Seymour, Jr., U. S. Atty., for S. D. N. Y., John W. Nields, Jr., Asst. U. S. Atty., of counsel for plaintiff.

Robert Mitchell, New York City, for defendant Ortiz.

TENNEY, District Judge.

The defendant, Arcadia Ortiz, was tried before this Court sitting without a jury on December 14, 1970 and January 13, 1971. She was charged with violat­ing Section 500 of Title 18 of the United States Code which makes it a crime to utter a false or forged postal money or­der "knowing any material signature or indorsement thereon to be false, forged, or counterfeited, or any material altera­tion therein to have been falsely made." The instant indictment, however, specifi­cally charged that the defendant uttered the forged money orders "knowing that the * * * signature of the pur­chaser on each such money order was false and forged and that a material al­teration had been falsely made on each such money order by the imprinting thereon of a counterfeit issuing office stamp." Although the Government has proven that the defendant uttered false and forged money orders with the knowledge that indorsements thereon

EXHIBIT 5

EXHIBIT 5 ATTACHlVIENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746]

BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 339 Cite as 329 F.Su]'p. 339 (l9il)

not the right to hold office or employ- This Court in Antal v. Budzanoski, ment but the infringement of the rights 320 F.Supp. 161, at page 163 (W.D.Pa., of plaintiff as a member of the union to 1970), stated: freedom of speech in union affairs.

[6,7] It appears to us that Plaintiff is attempting to litigate his title to of­fice. As such he has no standing to sue. The exclusive procedure governing elec­tions to and removal from office are those provided by Title IV, Sections 401 and 402 of the L.M.R.D.A. of 1959, (29 U.S.C.A. §§ 481, 482) where the only party who had standing to sue in the United States District Court is the Sec­retary of Labor, after the exhaustion of internal remedies and complaint by the aggrieved party to the Secretary of La­bor. Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964); Mamula, cit. supra; Nelms v. United Association of Journeymen and Appren­tices of Plumbing and Pipe Fitting In­dustry of U.S. and Canada (5th Cir., 1968) 405 F.2d 715; Local 115, United Brotherhood of Carpenters and Joiners of America v. Vnited Brotherhood of Carpenters and Joiners of America. 247 F.Supp. 660 (D.C.Conn., 1965); Gulick­son, cit. supra.

Defendant also urges that Plaintiff has failed to exhaust internal remedies as required by Section 101(a) (4) of Ti­tle IV of the L.M.R.D.A. of 1959 (29 U. S.C.A. § 411 (a) (4). Plaintiff has filed an affidavit that no internal remedy was available under the Constitution or By­Laws of the Defendant prior to the opening of the convention on June 8, 1971. Plaintiff did file a notice of ap­peal on June 2, 1971, with the Interna­tional Secretary-Treasurer; on which no action has been taken. Defendant has filed an affidavit that Plaintiff made no attempt to appear before the Credentials Committee of the Convention on June 7, 1971, to contest his removal as a dele­gate; and Defendant claims that the Constitution of the Union provides' a remedy in the form of an appearance be­fore the Standing Committee on Appeals with respect to Plaintiff's removal from office.

"Statutory limitations and restrictions were expressly imposed by Congress to avoid as much as possible judicial interference into the internal manage­ment of labor organizations and to compel, as far as possible, the parties involved to seek their remedies through the internal machinery of the labor organizations."

Regardless of whether there are ap­propriate and available internal reme­dies in the Defendant's Constitution or By-LaViS, the Plaintiff asserts no cause of action under Title I of the Act and the motion for summary judgment must be granted. As previously discussed, Plaintiff has no standing to sue under Title IV; and the Plaintiff's proper remedy is to file a complaint with the Secretary of Labor in accordance with § 481 of Title IV.

BASS ANGLERS SPORTSMAN'S SOCI· ETY OF AMERICA and Chatta·

nooga Bass Club v.

SCHOLZE TANNERY, INC., et al.

Civ. A. No. 6009.

United States District Court, E. D. Tennessee, S. D.

May 17, 1971.

Action by conservation groups against alleged industrial polluters, the Secretary of the Army, the Director of the Corps of Engineers and the Depart­ment of Justice for penalties and injunc­tive relief arising out of alleged viola­tions of the Rivers and Harbors Act of 1899. The District Court. Frank \V. Wilson. Chief Judge, held that conserva­tion organizations did not have standing

__ ".-' ......... ..,.. - ._ •• ~ -,. 0"'''''

340 329 FEDERAL SUPPLEMENT

to bring action against alleged industrial polluters to recover penalties for the al­leged violation of statutes relating to de­posit of refuse in navigable waters; the exclusive power of the Department of Justice to enforce the statutes precluded any private civil action, including qui tam action, for recovery of informer's moiety.

Dismissed.

1. Penalties ~24 A . "qui tam" action is action

brought by an informer, under statute which establishes penalty for commis­sion or omission of a certain act, and provides that same shaH be recoverable in civil action, part of the penalty to go to any person who will bring such action and the remainder to the state or some other institution. Rivers and Harbors Appropriation Act of 1899. §§ 13, 16, 17, 33 U.S.C.A. §§ 407,411.413.

See publication \Yords and Phrases for other judicial constructions and definitions.

2. Navigable Waters 935 For informer to recover in qui tam

action to recover one-half of fine im­posed on polluter in prosecution for vio­lation of statutes relating to deposit of refuse in navigable waters, a criminal proceeding must be instituted against the polluter, a conviction obtained and a fine imposed as punishment. Rivers and Harbors Appropriation Act of 1899, §§ 13, 16, .33 lJ .S .C.A . § § 407, 411.

3. Action €=>5 Criminal statutes cannot be en­

forced by civil proceedings.

4. Action €=>5 Alleged violations of criminal stat­

utes may be enforced only by the proper prosecuting authorities and not by pri­vate parties.

5. Attorney General 97 The Attorney General and his rep­

resentatives in the Department of Jus­tice are vested with broad discretion in determining whether to prosecute partic­ular criminal violation and in determin-

ing how any such prosecution will be maintained.

6. Mandamus C==>61 Mandamus will not lie to control ex­

ercise of Attorney General's disc retion as to whether to prosecute particular criininal violation nor may the court. or private citizens otherwise interfere with the free exercise of the discretionary powers of the Attorney General and his representatives in their consideration, investigation and prosecution of crimi­nal violations.

7. Navigable Waters e:>35 Conservation organizations did not

have standing to bring action against al­leged industrial polluters to recover pen­alties for the alleged violation of stat­utes relating to dep0sit of refuse in nav­igable waters; the exclusive power of the Department of Justice to enforce the statutes precluded any private civil ac­tion, including qui tam action, for recov­ery of informer's moiety . Rivers and Harbors Appropriation Act of 1899, §§ 13, 16, 17, 33 V.S.C.A. §§ 407, 411, 413.

8. Injunction €=>102 Generally, injunctive reiief is not

proper remedy for enforcement of crimi­nal laws.

9. Injunction C==>102 When only ground for seeking in­

junctive relief is that criminal violation has occurred, the courts will not inter­fere by injunction; resort to extraordi­nary remedy of injunction should not be used for sole purposes of enforcing crim­inallaws.

10. Injunction C==>102 Nuisance C==>80

Judicial reluctance to enjoin com­mission of a crime is subject to the ex­ceptions of national emergencies, wide­spread public nuisance and when a spe­cific statutory grant of power exists.

n. Na"igable Waters e:>35 District court had power to enjoin

industrial plants from violation of stat­ute making it unlawful to deposit any refuse in navigable waters of the United States. Rivers and Harbors Appropria-

BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 341 Cite a~ 329 F-Il1PP. 33!l (l9:1l

tion Act of 1899, § 13, 33 407.

12. Navigable Waters C=>35

U.S.C.A. § would mandamus lie to require Depart­ment of Justice to join wi th conserva­tion groups in seeking injunctive relief

Conservation groups did not have standing to seek injunctive relief against violation by industrial plants of statute which makes it unlawful · to de-posit refuse in the navigable waters of the United States. Rivers and Harbors Appropriation Act of 1899, § 13, 33 U . S.C.A. § 407.

13. InjllI1ction €=>U4(2) Private indiyidual has no standing

to champion the rights of the public, ex­cept where such private indi\' idual suf­fers some special injury or damage. Rivers and Harbors Appropriation Act of 1899, § 13,33 U.S.C.A . § 407.

14. Mandamus €=>1, 10, 12 Mandamus is extraordinary writ

and prior to its issuance, party request­mg it must establish that he had clear and certain right and that the duties of the defendant are plainly defined and peremptory.

15. Mandamus €=>71, 72 . Mandamus is proper to command an

official to perform a ministerial or non­discretionary act, but is not appropriate to require an official to perform some discretionary act.

16. Mandamus .G=;>99 District Court was without power

under the Rivers and Harbors Appropri­ations Act of 1899 to compel the devel­opment and implementation by the Sec­retary of the Army and the Chief of Army Corps of Engineers of permit sys­tem for the discharge of refuse in the navigable waters . Rivers and Harbors Appropriation Act of 1899, §§ 9 et seq., 13, 33 U.S.C.A. §§ 401 et seq., 407 and 419.

17. Mandamus C=>61, 99 The discretion of the A ttorney Gen­

eral in choosing whether to prosecute \ ' j­

olations of Act prohibiting the deposit of refuse in navigable waters is absolute ~nd mandamus would not lie to control the free exercise of the discretion nor

against violation of the statute. Rivers and Harbors Appropriation Act of 1899, §§ 13, 17,33 U.S.C.A. §§ 407, 413.

18. United StatesC=>125 (28, 30) Action by conservation groups

against Attorney General and Chief of Corps of Engineers to compel the prose­cution of alleged pollution of navigable waters and to require issuance of regu­lations governing the deposit of refuse in navigable waters constituted action against the United States to which it had not consented and was subject to dismissal. Rivers and Harbors Appro­priation Act of 1899, §§ 13, 17, 33 U.S . C.A. §§ 407, 413; 28 U.S.C .A. § 1361.

19. United States (::::>125(3) Suit may be brought against the

Un lted States without its consent where the suit involves action by United States officers beyond their statutory powers or when the powers themselves or the manner in which they are exercised are constitutionally void even though the of­ficers are acting within the scope of their authority. 28 U.S.C.A. § 1361.

Finnell, Thompson & Scott, Cleveland, Tenn., for plaintiffs.

Chambliss, Bahner & Crawford, Chat­tanooga , Tenn., for defendants Swift Edible Oil Co., Farmers Chern. Co. & McKee Baking Co.

Ralph Shumacker, Chattanooga, Tenn ., for Highway 58 Shopping Center.

Tanner & Jahn, Chattanooga, Tenn ., for Selox Inc.

E. K. Meacham, Chattanooga, Tenn .. for City of Chattanooga .

Morgan, Garner & Wood, Chattanooga, Tenn., for Nation Hosiery Mills, Inc.

Bishop. Thomas, Leitner , Mann & l\1il­burn, Chattanooga, Tenn. , for Chattam Drug & Chemical Co.

R. Wayne Grant, Chattanooga, Tenn., for Industrial Plating Co.

342 329 FEDERAL SUPPLEMENT

Stophel, Caldwell & Heggie. Chatta­nooga, Tenn .. for W. R. Grace & Co.

Witt, Gaither. Abernathy & Wilson, Chattanooga, Tenn., for Wheland Found­ry, Woodward Iron Co. & Ray Ser Dyeing Co.

Miller, Martin, Hitching, Tipton, Len­ihan & Waterhouse, Chattanooga, Tenn., for Bowaters Southern Paper Co., Al­coa Chemical & Olin Mathieson Chern.

John L. Bowers, U. S. Atty .. for Army.

Bass, Berry & Sims by Chas. Wray, Nashville, Tenn., for Olin Corp.

OPINION

FRANK W. WILSON, Chief Judge.

This civil suit for penalties and in­junctive relief arises out of alleged vio­lations of 33 U.S.C. §§ 407 and 411 (the Rivers and Harbors Act of 1899). The plaintiff, Bass Anglers Sportsman's So­ciety of America. Inc., is a society com­posed of some 11,000 members whose purpose is the furtherance of conserva­tion interests and prog~ams connected with the overall use of waterways and navigation throughout the · enited States. The plaintiff, Chattanooga Bass Club, Inc ., is an affiliate of Bass An­glers Sportsman's Society of America, Inc., in its conservation programs. The defendants are classified as Group A

.. a'nd Group B defendants. The Group A defendants are composed of a number of manufacturers and processors that are allegedly polluting thewatenvays of Tennessee. The Group B defendants are the Secretary of the Army and the Director of the Corps of Engineers re­spectively, who allegedly ha\"e failed to perform their duties as imposed by law. Additionally and by motion to amend the plaintiff seeks to add the Department of Justice as a Group B defendant since it also allegedly has failed to perform its designated function pursuant to the Riv­ers and Harbors Act of 1899.

The legal theory of the plaintiffs in the instant case appears identical to the theory of the. plaintiffs in the case enti-

• tied "Bass Anglers Sportsman's Society of America. et al. v. United States Ply­wood-Champion Papers. Inc., et a!.," 324 F.Supp. 302 (D.C.S.D.Texas 1971. Dock­et ~ 70-H-I004). Judge Seals there de­fined the plaintiffs' theory in the follow­ing terms:

The legal theory of the plaintiffs in the present suit is that they have the right to prosecute a qui tam action pursuant to Sections 407 and 411 of Title 33, U.S. C., to obtain an injunc­tion prohibiting the industrial defend­ants from dumping refuse into Texas waterways without a permit in viola­tion of § 407, to obtain penalties pro­vided by § 411 for each such violation of § 407, and to obtain an injunction requiring defendant Stanley R. Resor, Secretary of the Army. and defendant, FrederickJ. Clark. Chief of Engi­neers, United States Army Corps of Engineers, to establish standards for the issuing of permits allowing the dumping of refuse into navigable wa­terways and tributaries of navigable waterways in the State of Texas and to apply these standards, once formu­lated, to anyone desiring to dump refuse into those navigable Texas wa­terways protected by 33 U.S.C. §§ 407 and 411. The plaintiffs have stated their cause of action no broader than §§ 407 and 411 of Title 33, U.S .C. Thus, plaintiffs must establish that they may, by this civil action, sue to enforce sections 407 and 411, or else the action must be dismissed for fail­ure to state a claim upon which relief can be granted.

Additionally and. by motion to amend, the plaintiffs in the instant case seek to obtain a writ of mandamus requiring the Department of Justice to perform mandatory duties imposed by 33 U.S.C. § 4i3 and specifically to join the plain­tiffs in the prosecution of this action .

Before embarking upon a detailed analysis of the legal issues for decision by the Court, it is appropriate to set out the provisions of each of the statutes with which the Court will be concerned.

BASS ANGLERS SPORTSMAN'S SOC, v. SCHOLZE TANNERY, INC. 343 Cite as 329 F .Supp. 339 (19.1)

Section 407 of Title 33 C.S.C. provides Section 411 of Title 33, U.S.C ., establish-the following: es the following penalties for violation

Deposit of refuse in navigable waters generaUy. It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, dis­charged, or deposited either from or out of any ship, barge, or other float­ing craft of any kind, or from the shore, wharf, manufacturing ' estab­lishment, or mill of any kind, any refuse matter of any kind or descrip­tion whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, Dr into any tributary of any navigable water from which the same shall float or be v.:ashed into such navigable wa­ter; and it shall not be lawful to de­posit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any naviga­ble water, or on the bank of any trib­utary of any navigable water, where the same s hall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods , or otherwise, whereby navi­gation shall or may be impeded or ob­structed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, ' considered necessary and proper by the United States offi­cers supervising such improvement or public work: And Provided Further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any materi­al above mentioned in navigable wa­ters, within limits to be defined and under conditions to be prescribed by him, pro\'ided applicat.ion is made tc him prior to depositing such material; and whene\'er any permit is so grant­ed the conditions thereof shall be strictly complied with, and any viola­tion thereof shall be unlawful.

of § 407:

Every person and every corporation that shall violate, or that shall know­ingly aid, abet, authorize, or instigate a violation of the provisions of sec­tions 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be pun­ished by a fine not exceeding $2,500 nor less than $500, or by imprison­ment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to convic­tion.

Finally, section 413 of Title 33, U.S.C., provides that:

The Departmen t of Justice shall con­duct the legal proceedings necessary to enforce the provisions of sections

'* * '* 40'/ '* '* '* 411 * '* '* of this title; and it shall be the duty of United States Attorneys to vigor­ously prosecute all offenders against the same whenever requestec to do so by the Secretary of the Army or by any of the officials hereinafter desig-nated '* '* '*"

Several observations are appropriate in considering the applicability of the aforementioned statutes to the instant case. First of all, § 407 establishes and defines a crime. Second, § 411 provides . that violation of § 407 shall be a misde­meanor. Further, § 407 spe~ifically de­fines the punishment to be imposed "on conviction." Finally, § 413 prcvides that it is the responsibility of the De­partment of Justice to conduct all the le­gal proceedings necessary to enforce § 407.

[1 J Section 411 provides that upon conviction of a violation of § 407 , the defendant shall be punished by "fine" and/or "imprisonment." Further, the statute states that if a fine is imposed, "one-half of said fine to be paid to the

344 329 FEDERAL SUPPLEMENT

person or persons giving information which shall lead to conviction." This provision of § 411 is crucial in the in­stant case for the plaintiffs premise their right to enforce the provisions of § 407 upon this phrase of the statute. That is, the plaintiffs maintain that they should be permitted to proceed with this suit under § 407 and § 411 as a qui tam action. A qui tam action is "an ac­tion brought by an informer, under a statute which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who wiII bring such action and the remainder to the state or some other institution." Black's Law Dictionary, 'p. 1414. Judge Pollock in Williams v. Wells Fargo & Co. Express, 177 F. 352 (8th Cir. 1910, de­scribed the qui tam action as. follows:

It would seem at the common law ac­tions to recover penalties pr~scribed

by law were often prosecuted by what was known as "common informers." Blackstone's Commentaries, Book 3 [Coolidge Ed.] 160, and when a por­tion of the penalty recovered went to the person or persons informing, and a portion to the sovereign, the action was styled a "qui tam action."

Judge Pollock also observed tha t:

While it has been held there must be either express statutory authority au­thorizing an informer to prosecute in his own name, or such right must be given by necessary implication (cases cited), yet, on the contrary, it has been ruled where a statute gives a portion of the recovery to an informer who prosecutes for the same 1(- 1(- * such statute contains sufficient im­plied authority to support a prosecu­tion by an informer in his own name. Adams, Qui Tam, v. Woods, 2 Cranch, 336, 6 U.S. 336, 2 L.Ed. 297; * 1(- ••

This observation was further considered in United States ex reI. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943), where Justice Black noted in footnote 4 that: "Statutes providing for a reward to informers which do not spe-

cifically either authorize or forbid the informer to institute the action are con­strued to authorize him to sue. Adams v. Woods, 2 Cranch 336, 6 U.S. 336, 2 L. Ed. 297." Adams v. Woods, supra" was an action of debt brought to recover a penalty imposed by an act entitled "An Act to prohibit the carrying on the slave trade from the United States to any for­eign place or country." The Court applying rules of statutory construction concluded that: "In this particular case, the statute which creates the for­feiture does not prescribe the mode of demanding it; consequently, either debt or information would lie."

[2] Turning to the circumstances of the instant case, each of the District Courts that have had occasion to consid­er Justice Black's comments, have reject­ed his analysis of the law. See Reuss v. Moss. American, Inc., No. 70-C-485 (E. D.Wisc. Feb. 23, 1971); Reuss v. Peter Cooper Corp., No. 70-C-486 (E.D.Wisc., Feb. 23, 1971) 323 F.Supp. 848; Bass Angler Sportsman's Society v. United States Steel Corp., et al. Nos. 70-733 (N.D.Ala., Feb. 8, 1971), 3124-N (M.D. Ala., Feb. 8, 1971), 6290-70-T (S.D. Ala., Feb. 8, 1971), 324 F.Supp. 412; Durning v. 1. T. T. Rayonier, No. 9070, 325 F.Supp. 446 (W.D.Wash., Oct. 5, 1970); Bass Anglers Sportsman's Socie­ty of America, et al v. U. S. Plywood­Champion Papers, Inc.: As stated in the latter case:

Justice Black·s dictum would appear to state the law too broadly. The qui tam action depends entirely upon stat­utory authorization, as it has never found its way into the common law. The action arises only upon a statuto­ry grant. The fact that someone is entitled by statute to share in some penalty or forfeiture does not neces­sarily also give such person the right to bring an original action to recover such penalty or forfeiture. There must be statutory authority, either ex­press or implied, for the informer to bring the q7.1i tam action. When the statute is silent as to whether the qui tam action is authorized, and nothing

BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 345 Cite as 329 F.Supp. 339 (19;ll

can be· gleaned concerning congres­sional intent from the circumstances surrounding the passage of the statute then perhaps Justice Black's construc­tion in favor of · the qui tam action may be justified in many instances. But Black's construction obviously is inappropriate whenever the statute's language by necessary implication pre­cludes such a conclusion.

An examination and analysis of § 411 shows clearly that the criticism of Jus­tice Black's dictum is well taken. First of all, § 411 provides that every person or corporation violating § 407:

'.~ ... if (S) hall be guilty of a misde­meanor, and on conviction thereof shall be punished by a fine * * ... or by imprisonment ... * *, or by both such fine and imprisonment, in the discretion of the court, one-half of said· fine to be paid to the person or persons giving information which shall lead to conviction. (Emphasis added)

Accordingly, the informer's rights de­pend upon three prerequisites:

1) A criminal proceeding being insti­tuted under § 411 ;

2) A conviction obtained in the crimi­nal proceedi ng; and

3) The imposition of a fine as punish­ment.

See Bass Anglers Sportsman's Society of America, et al. v. U. S. Plywood-Champi­on Papers, Inc., et aI., supra. The in­fOl'mer's rights are dependent entirely upon the successful prosecution of a criminal action.

[3] Viewed in this light, several ad­ditional observations are In order. First, criminal statutes cannot be en­forced by civil proceedings. United States v. Claflin, 97 U.S . 546, 24 L.Ed. 1082 (1878). See also Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630 , 82 L.Ed. 917; United States v. Regan, 232 U.S. 37, 34 S.Ct. 213, 58 L. Ed. 494; Hepner v. United States. 213 U.S. 103, 29 S.Ct. 474, 53 L .Ed. 720.

329 F.Supp .-22l/z

[4-6] Second and more important, case law indicates that alleged violations of criminal statutes may be enforced only by the proper prosecuting authori­ties and not by private parties. See Pu­gach v. Klein, 193 F.Supp. 630 (S.D.N. Y.1961). In this regard, case law is likewise clear that the Attorney General and his representatives in the Depart­ment of Justice are vested with broad discretion in determining whether to prosecute a particular criminal violation and in determining how any such prose­cution will be maintained. See Spillman v. United States, 413 F.2d 527 (9th Cir. 1969) cert. den. 396 U.S. 930, 90 S.Ct. 265, 24 L.Ed;2d 228 ; Smith v. United States, 375 F.2d 243 (5th Cir. 1967) cert. den. 389 U.S. 841, 88 S.Ct. 76, 19

. L.Ed.2d 106; United States v. Cox, 342 F .2d 167 (5th Cir. 1965) cert. den. 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700. Indeed, in Smith v. United States, supra, Judge Goldberg stated the principle in the following terms:

The President of the United States is charged in Article 2, Section 3, of the Constitution with the duty to "take care that the laws be faithfully exe­cuted ., ., *" The Attorney Gen­eral is the President's surrogate in the prosecution of all offenses agai nst the United States. 5 U.S.C.A. § 291 et seq., 28 U.S.C.A. § 507. The dis­cretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to abandon a prosecu­tion already started, is absolute. Con­fiscation Cases, 1869, 74 U.S . (7 Wall.) 454, 19 L.Ed. 196; Powell v. Katzenbach, 1965, 123 U.S.App.D.C. 250, 359 F.2d 234, cert. den . 1966, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359, reh. den. 384 U.S. 967, 86 S.Ct. 1584, 16 L.Ed.2d 679 .

See also Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967); Epperson \'. United States, 125 U.S . App .D.C. 303, 371 F.2d 956 (D.C.Cir. 1967); In re Grand Jury January 1969, 315 F.Supp . 662 (D.Md.1970); United States V. Interlake Steel Corp., 297 F.

346 329 FEDERAL SUPPLEMENT

Supp. 912 (N .D.I11.1969) [discussing discretion exercised by United States Attorney in prosecution under the Riv­ers and Harbors ActJ; Shipman v. United States, 309 F .Supp. 441 (E .D. Va.1970). Moreover, mandamus will not lie to con trol the exercise of this discre­tion nor may the courts or private citi­zens otherwise interfere with the free exercise of the discretionary powers of the Attorney General and his represent­atives in their consideration, investiga­tion and prosecution of criminal viola­tions. See Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); Smith v. United States, supra; United States v. Cox, su­pra.

[7J Accordingly under the circum­stances of the instant case and the appli­cable law the Court is of the opinion that the plaintiffs have no standing to maintain this action pursuant to §§ 407 and 411 nor to recover the penalty pro­vided by § 411 short of a successful criminal prosecution. These statutes create and define crimes which may not be prosecuted by private civil action. The designation of the action as a qui tam action does not circumvent the con­clusions reached for § 413 provides ex­plicitly · that the power to enforce the provisions of §§ 407 and 411 lies exclu­sively in the Department of Justice, thereby precluding any private civil ac­tion for the recovery of the informer's moiety.

In addition to seeking recovery of the fine provided in § 411, the plaintiffs also seek injunctive relief against both the Group A and Group B defendants . Indeed, the injunctive relief is actually the primary relief sought by the plain­tiffs. As represented unto the Court at the hearing in this case, the recovery of the monetary fine provided in § 411 was at best a secondary objective of the plaintiffs. The plaintiffs' primary objective has been and remains the objective of preventing the defendants from polluting the waterways of Tennes­see .

[8- 10] As to the Group A defend­ants, the plaintiffs seek a permanent in­junction

"* * * prohibiting defendants from depositing refuse or waste of any kind or description into any navi­gable waterway or tributary of any navigable waterway, or to deposit any such refuse or waste on the banks of any navigable water or on the bank of any tributary of any navigable water in violation of 33U.S.C. Section 407, without a permit from the Secretary of the Army as provided by statute."

The Court has heretofore observed that § 407 is a statute defining a criminal vio­lation. Accordingly, the plaintiffs seek in this phase of the litigation to enjoin activity that is held by § 411 to be a crime. In this regard, the general rule appears to be that injunctive relief is not a· proper remedy for the enforcement of criminal laws. See In re Debs, 158 U.S. 564, 15 S .Ct. 900, 39 L.Ed. 1092 (1895) . That is, where the only ground for seeking injunctive relief is that a criminal violation has occurred, the Courts will not interfere by an injunc­tion since resort to the extraordinary remedy of injunction should not be used for the sole purpose of enforcing the criminal laws. As noted in United States v. Jalas, 409 F.2d 358 (7th Cir. 1969), this reluctance by the Courts to enjoin the commission of a crime is sub­ject to the following three exceptions: 1) national emergencies, 2) widespread public nuisance, and 3) where a specific statutory grant of power exists. In summary, the criminal nature of a par­ty's action is not in and of itself deter­minative of whether an injunction is necessary or appropriate. That is, as noted in 42 Am.Jur.2d, "Injunctions" § 157:

The remedy at law by criminal prose­cution is not always efficacious and adequate, and however reluctant equi­ty may be to use the process of in­junction against criminal and penal acts, . it will not hesitate to do so where the relief is necessary to pro-

BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 347 Cite as 329 F.Supp. 339 (l!I~!)

tect the rights of the public or of pri- concisely stated by Mr. Justice Fortas in vate individuals. Thus, it is generally . the Wyandotte case, as follows:

held that an injunction will be granted The Federal Government is charged to restrain acts amounting to a public with ensuring that navigable water-nuisance if they affect the civil or ways, like any other routes of com-property rights or privileges of the merce over which it has assumed con-public or endanger the public health, trol, remain free of obstruction. Cf. regardless of whether such acts are In re Debs, 158 U.S. 564, 586, 15 S.Ct. denounced as crimes. 900, 907, 39 L.Ed. 1092, 1103 (1895).

The plaint.iffs contend in the instant The Rivers and Harbors Act of 1899, case that the deposits of waste and an assertion of the sovereign power of refuse into the streams of Tennessee the United States, Sanitary District have had and will continue to have a of Chicago v. United States, 266 U.S. detrimental effect upon the fish and 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925) wildlife frequenting these streams. was obviously intended to prevent 00-Further, the plaintiffs contend that they structions in the Nation's waterv.·ays. are aggrie\'ed parties entitled to seek in- Despite some difficulties with the junctive relief since they are corpora- wording of the Act, we have consist-tions existing primarily for the purpose ently found its coverage to be broad. of conserving rivers and streams for the (cases cited) benefit of the public generally and In both the Republic Steel case and the sportsmen in particular. Wyandotte case the argument was ad-

Two issues require decision by the vanced that congressional authorization Court upon this phase of the action . for injunctive relief under certain sec-First, whether injunctive relief is prop- tions of the Act indicate a congressional er or appropriate pursuant to §§ 407 and intent that such extraordinary relief is 411. Second, assuming that injunctive appropriate only in those circumstances relief is permissible, whether the plain- where specifically authorized and in no tiffs in this lawsuit have a sufficient in- other. The Supreme Court answered terest to seek injunctive !'elief, that is, this argument in the context of § 10 of whether these particular plaintiffs have the Act by stating: standing to secure an injunction against Congress has legislated and made its the actions herein complained of. purpose clear; it has provided enough

[l1J Returning to the first question. being the propriety of injunctive relief for alleged \'iolations of § ' 407, the re­cent case United States of America v. Florida Power & Light Company, 311 F.Supp. 1391 (S.D.Fla ., 1970) holds that "case law interpretation of Section 13, although arguable, endows [theJ Court with the authority to issue injunctive relief for its violation." This conclusion finds support in two Supreme COU!·t cas­es dealing with civil relief under .the "Refuse Act," being, United States of America v. RepUblic Steel Corp., 362 U.S. 482, 80 S .Ct. 884, 4 L.Ed.2d 903 (1960) reh. den. 363 U.S. 858, 80 S.Ct. 1605, 4 L.Ed.2d 1739 and Wyandotte Transpor­tation Company v. United States. 389 U.S. 191, 88 S .Ct. 379, 19 L.Ed.2d 407 (1967). The teachi ng of these cases is

federal law in § 10 from which appro­priate remedies may be fashioned even though they rest on inferences. Oth­erwise we impute to Congress a futili­ty inconsistent with the great design of this legislation.

The Supreme Court in the Republic Steel case did however clearly state that § 13 of the Act was likewise to be ac­corded a broad interpretation:

The philosophy of the statement of Mr. Justice Holmes in New Jersey v. New York . 283 U.S. 336, 342, 51 S.Ct. 478, 479. 75 L.Ed. 1104, 1106, that, "A rinr is more than an amenity, it is a treasure," forbids a nano\\'. cramped reading either of § 13 or of § 10.

Although the RepUblic Steel case in­volved interpretation of § 10 of the Act

348 329 FEDERAL SUPPLEMENT

and the Wyandotte case was concerned with available remedies under § 15 of the Act, the principles of both cases clearly favor and authorize the use of injunctive relief, at least upon applica­tion by the United States to prohibit vi­olation of § 13 of the Act. See also Sanitary District v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925); United States v. San Jacinto Tin Company, 125 U.S. 273, 8 S.Ct.. 850, 31 L.Ed. 747 (1888). This conclusion is well founded for as noted in the Wyan­dotte case, "* * * we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Govern­ment itself." Under these circumstances, it appears clear that this Court has au­thority to grant injunctive relief for vio­lation of § 13 (33 U.S.C. § 407) of the Rivers and Harbors Act of 1899.

[12; 13J Turning to the second issue, whether the plaintiffs in the instant case have standing to seek injunctive re­lief in this case, the simple answer is that they do not. The following quota­tion from Carolina Power and Light Co. v. Sou th Carolina Public Service A uthor­ity, 94 F.2d 520 (4th Cir . 1938) cert. den. 304 U.S. 578, 58 S.Ct. 1048, 82 L. Ed. 1541, offers the most concise reason for this conclusion:

"* * * [IJt is perfectly well set­tled that any unlawful obstruction of a navigable stream or a public high~ way is a matter for the public author­ities, not a matter of which private individuals may complain, unless they suffer some direct and special injury to their rights not common to the pub­lic. (cases cited) And, with respect to obstruction of navigable waters, provi­sion is expressly made by federal stat­ute for the Attorney General of the · United States to institute proceedings for the removal of such obstruction, 30 Stat. 1151, as amended 33 U.S.C. A. § 406.

See also Northern P. R. Co. v. Whalen, 149 U.S. 157, 13 S.Ct. 822, 37 L.Ed. 686; Georgetown v. Alexandria Canal Co., 12 Pet. 91, 37 U.S. 91, 9 L.Ed. 1012; Pacif­ic Inter-ClUb Yacht Association v. H. A.

Morris, 197 F.Supp. 218 (N.D.Cal. 1960); Chitwood v. South Carolina Electric & Gas Co., 51 F.Supp. 486 (E. D.S.C.1943); 39 Am.Jur., "Nuisances" § 123 et seq. The general rule is clear therefore that private individuals have no standing to champion the rights of the public except where such private in­dividual suffers some special injury or damage.

This lawsuit concerns alleged impair­ment and pollution of the waterways of the United States, specifically, in the State of Tennessee. The plaintiffs rest their case and their right to relief upon the Rivers and Harbors Act of 1899 and specifically the "Refuse Act" [33 U.S.C. § 407J therein contained. As noted in the Wyandotte case: "The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States (cases cited) was obviously intended to prevent obstructions in the Nation's wa­terways." The Federal Government, pursuant to Article I § 8 of the Consti­tution, is responsible for overseeing and protecting channels of commerce includ­ing navigable waterways. The Rivers and Harbors Act of 1899 is a statutory assumption of that responsibility by Congress. Section 413 of that Act vests the Department of Justice with the re­sponsibility of conducting those legal proceedings necessary to enforce the

. provisions of the "Refuse Act." The al­legations of the complaint herein reflect that the plaintiffs, as private parties, are concerned with the preservation of the Nation's waterways and of the fish and wildlife that are indiginous to these waterways.

The plaintiffs' as special interest groups, may indeed conceive of their in­terest in conservation and the alleged pollution of our waterways as a special injury. However, the destruction or im­pairment of our environment, through water and / or other forms of pollution, is a blight upon the Nation and not merely the concern of special interest groups such as the plaintiffs. Technical profi­ciency and progress has had an unex­pected and unwanted byproduct, ecologi-

BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 349 Cite as 3~ F.Supp. 33!) (1971)

cal erosIOn. The extent of this erosion guage which requires either the Secre-is not fully known at this point in time. tary of the Army or the Director of the But, realization by man that he is slowly Corps of Engineers to establish such but certainly destroying not only the standards and issue permits pursuant to aesthetics of his environment, but the these standards. Section 407 of the Act life sustaining capacity of that environ- doe;> provide that: ment has caused a public outcry that sounds world wide. Human response to this impending disaster has manifested itself through legislation, executive fiat, consideration by the judiciary and, most importantly, through the response of the citizens of the Nation in the reassess­ment of and the reaction to the treat­ment accorded the environment. Under these circumstances, it is clear to this Court that the plaintiffs, as private citi­zens, have no special standing under the Rivers and Harbors Act which would permit them to seek injunctive relief against the Group A defendants in lieu of appropriate governmental officials or agencies. The plaintiffs' concerns and motivation in seeking this relief is in­separable from the concerns of the gen­eral public. Likewise, the injury and damage sustained by the plaintiffs in the instant case is indistinguishable from the inj ury and damage suffered by the public at large.

Additionally, the plaintiffs seek the following injunctive relief against the Group B defendants:

A) A permanent injunction requIring said defendants to establish stand­ards for the issuing of permits al­lowing the dumping of refuse into navigable water\\'ays and tributar­ies of navigable waterways in the State of Tennessee; and

B) A permanent injunction requIring said defendants to apply said standards, and formulated to any­one desiring to dump refuse into those navigable Tennessee water­ways protected by 33 U.S.C. §§ 407 and 41l.

The Rivers and Harbors Act of 1899 (33 U.S.C. §§ 401 et seq .), and more specifi­cally, the "Refuse Act," contain no lan-

The Secretary of the Army, whenever in the judgment of the Chief of Engi­neers * * * may permit the de­posit of any material above mentioned in navigable waters, within limits to be defined and under conditions pre­scribed by him, provided application is made to him prior to depositing such material * *

Additionally, § 419 authorizes the Secre­tary of the Army to develop such a per­mit system. In relevant part, this stat ­ute provides:·

The Secretary of the Army is autho­rized and empowered to prescribe' reg­u la tions to govern the transportation and dumping into any navigable wa­ter, or waters adjacent thereto, of dredgings, earth, garbage, and other refuse materials of every kind or de­scription, whenever in his judgment such regulations are required in the interest of navigation.

These statutes clearly indicate that the development and implementation of a permit system by the Secretary of the Army and the Chief of Engineers is dis­cretionary as opposed to mandatory. The . relief sought in this phase of the action is in the nature of mandamus to compel the Secretary of the Army and/or the Chief of Engineers to estab­lish and apply standards for the issu­ance of permits allowing the deposit of refuse in navigable waters.

[14-16] The writ of mandamus is an extraordinary writ and prior to its issu ­ance , the party requesting it must estab­lish that he has a clear and certain right and that the duties of the defendant are plainly defined and peremptory~ See Al ­bert v. United States District Court, 283 F .2d 61 ( 6th Cir. 1960) cert. den . 365 U.S. 828, 81 S.Ct. 713, 5 .L.Ed .2d 706,

~. -.- , , -. ..... " •• >_ •• ---~ -'>' ~"'" .

' . .

350 329 FEDERAL SUPPLEMENT

and cases cited. Simply stated, manda­mus is proper to command an official to perform a ministerial or non-discretion­ary act, United States v. Walker, 409 F. 2d 477 (9th Cir. 1969), but not appro­priate to require an official to perform some discretionary act. This Court is without authority to require the Secre­tary of the Army or the Chief of Engi­neers to take any action which they have discretion to perform or not perform as they may determine. See McWhorter v. Kennedy, 324 F.2d 793 (8th Cir. 1963); Hudgins v. Circuit Court of Chesapeake, Va., 294 F.Supp. 258 (E.D.Va.1968); Commonwealth of Massachusetts v. Con­nor, 248 F .Supp. 656 (D.Mass.1966) aff'd per curiam 366 F.2d 778 (1st Cir. 1966 ).

It is clear under the applicable law . and the statutes in the instant case that this Court has no' authority to direct the Secretary of the Army or the Chief of Engineers to set standards for the issu­ance of permits or to require the issu­ance of permits. See Wilbur v. United States ex reI. Kadrie, 281 U.S. 206, 50 S. Ct. 320, 74 L.Ed. 809.

The plaintiffs have moved to amend the complaint to join the Department of Justice as a party defendant and to re­quest a writ of mandamus requiring the Department of Justice to perform man­datory duties imposed by 33 U.S .C. § 413, speCifically, to join the plaintiffs in . the prosecution of this action .

[17J As the Court has heretofore ob­served, the discretion of the Attorney General in choosing whether to prose­cute or not to prosecute criminal viola­tions is absolute and mandamus will not lie to control the free exercise· of this discretion . Likewise insofar as the plaintiffs are seeking an order upon the Department of Justice to require them to join with the plaintiffs in seeking in­junctive relief for violation of § 13 (33

U.S.C. § 407) of the Rivers and Harbors Act of 1899, mandamus will not lie. Al­though 33 U.S.C. § 413 provides that "the Department of Justice shall conduct the legal proceedings necessary to en­force the provisions of sections * * * 407 * * * 411 of this title" and al­though, as the Court has heretofore held, injunctive relief is one tool availa­ble for enforcement of the Act, there is no mandatory duty or obligation upon

. the Department of Justice to seek either a criminal or a civil remedy. Rather, these are matters of discretion and the Court is without 'authority to direct the Department of Justice to join the plain­tiffs in seeking injunctive relief for al­leged violations of the Rivers and Har­bors Act of 1899.

[18,19J FinalIy, since the plaintiffs do not premise their cause of action against these government officials upon 28 U.S.C. § 1361 and since HIe Court has heretofore concluded that relief in the nature of mandamus is not proper, the Court is further of the opinion that it lacks jurisdiction over the Group B de­fendants, since this suit is in reality an action against the sovereign to which it has not consented and does not fall with­in either of the recognized exceptions to the doctrine of sovereign immunity, being 1) action by officers beyond their statutory powers, and 2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitu­tionally void. See Dugan v. Rank, 3/2 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15, (1963); Larson v. Domestic & Foreign Commerce Corp, 337 U.S. 682, 93 L.Ed. 1628, 69 S .Ct. 1457, (1949); Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962) . For the reasons hereinabove stated, this lawsuit will · stand dismissed as to all parties defend­ant. An order wiIl enter accordingly.

EXHIBIT 6

EXHIBIT 6 ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746]

302 324 FEDERAL SUPPLEMENT

BASS ANGLERS SPORTSMAN'S SO­CIETY OF A.l\-IERICA et aL

v. U. S. PLYWOOD-{;HAMPION PAPERS,

INC., et al.

C. A. No. 7~H-l004.

United States District Court, S. D. Texas,

Houston Division.

Feb. 10, 1971.

Action by private parties seeking injunctive relief and damages from a number of alleged industrial polluters of waterways, and also naming as defend­ants the Secretary of the Army and the Chief of the Army Corps of Engineers. The District Court, Seals, J., held that private parties could not take it upon themselves to obtain convictions under statutes relating to deposit of refuse in navigable waters since such statutes were solely criminal statutes, and suit could not be maintained as a qui tam ac­tion on ground that one-half of fine im­posed for violating statute '.vas to be paid to persons giving information leading to conviction, which allegedly showed that there was congressional au­thorization of qui tam action to enforce the statute, since there was no statutory authority, either express or implied, per­mitting an informer to bring the qui

. tam. actWn. .

Judgment accordingly.

1. Constitutional Law e:>73 District and Prosecuting Attorneys

~i(l)

In the exercise of responsibility of Department of Justice for prosecution of federal crimes, neither private citizens, the legislature nor the judiciary may in­terfere.

2. Navigable Waters <$=>35

Private parties could not take it upon themselves to obtain convictions

under statutes relating to deposit of refuse in navigable waters since such statutes were solely criminal statutes, and suit · could not be maintained as a qui tam action on ground that one-half

. of fine imposed for violating statute was to be paid to persons giving information leading to conviction, which allegedly showed that there was congressional au- . thorization of qui tam action to enforce the statute, since there was no statutory authority, either express or implied, per­mitting an informer to bring the qui tam action. Rivers and Harbors Appro­priation Act of 1899, §§ 13, 16, 17, 33 U.S.C.A. §§ 407, 411,413.

3. Navigable Wat.ers e:>35 . Private parties bringing suit under

statutes relating to deposit of refuse in navigable waters could not compel Secre­tary of Army and Chief of Army Corps of Engineers to set standards to require permits under the provisions of such statutes where there was no statutory mandate requiring such officers to de­velop and implement a set of pollution standards governing emissions into navi­gable waters; while statute providing for regulation by Secretary of transpor­tation and dumpings of dredgings and refuse into navigable waters may pro­vide adequate authority for Secretary to develop and implement general standards for a permit system, it in no manner commands him to do so. Rivers and Harbors Appropriation Act of 1899, §§ 13, 16, 33 U.S.C.A. §§ 407, 411; 33 U.S. C.A. § 419. ' .

4. United states C=>125(30) Court lacked jurisdiction over Sec­

retary of Army and Chief of Army Corps of Engineers since, unless acting illegally under statu tory au thori ty vest­ed in them, or unless statutes under which they were acting were unconstitu­tional, these governmental officers, as agents and officers of United States, were protected by doctrine of sovereign immunity, and plaintiffs made no mate­rial allegation that these officers exceed­ed their authority and did not seek to have statutes under which they were acting declared unconstitutional.

~. '~ """ -~"-~ ..• .. "

BASS ANGLERS SPORTS. SOC. v. U. S. PLYWOOD-CHAMPION PAPERS 303 Cite as 321 F.Supp. 302 (1971)

L. A. Greene, Jr., Houston, Tex., for plaintiffs.

C. E. Nadeau, Legal Dept. , Shell Chemical Co., Ben H. Rice, Vinson, Elk­ins, Searls & Smith, Kenneth R. Wynne, Joe Jaworski, Bracewell & Patterson, Houston, Tex., Robert W. Alexander, McCleod, Alexander, Powel & Apffel Galveston, Tex., Jack Shepherd, Asst. U. S. Atty., Houston, Tex., F. William Col­burn, Asst. City Atty., City of Houston, Houston, Tex., Levin & Dees, Montgom­ery, Ala., G€orge Rice, Butler, Binion, Rice, Cook & Knapp, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

SEALS, District Judge.

With the rarest of exceptions, the progress of man has been tarnished by the gradual degradation of his ecological environment. Our surroundings have been subjected to a continuous effluent of pollutants; scenic and recreational resources have been blighted and de­spoiled-in many instances, obliterated; species have been ignominiously driven }nto extinction,while a growing number of other endangered. species await the same fate. Only recently has man be­gun to appreciate the extent of the dam­age he has wrought by his irresponsible tampering with the interdependent com­plex of climatic, edaphic and biotic pro­cesses that act upon all organisms, and ultimately determine their form and survival. There is a growing realization that the ecological scales are in danger of being so uncontrollably tipped, if they have not already been so disturbed, that all life forms, including man, the archi­tect of this destruction, will perish. This envi ronmen tal crisis has generated popular demand that the accelerating trend of environmental degradation be abated and, where feasible, reversed.

The efforts of most private citizens concerned with the preservation of envi­ronmental quality have been directed to­ward the legislative and executive branches of federal, state and local gov­ernments including the myriad of rele-

vant administrative agencies. But many environmentalists, dissatisfied with the efforts of these governmental bodies, have sought judicial relief, oftentimes instituting suit against the very govern­mental agencies charged with the re­sponsibility of protecting the interests of the public in these matters. Such is the nature of the present suit.

The plaintiffs, Bass Anglers Sports­man's Society of America, describing it­self as a' society composed of some 11,- ' 000 members, and the Baytown Bass Club, describing itself as an organiza­tion in Baytown, Texas, are special in­terest groups apparently dedicated to achieving the abatement of water pollu­tion . Seeking injunctive relief, as well as damages, plaintiffs have instituted this civil suit against a number of al­leged industrial polluters of Texas water­ways and against the Secretary of the Army and the Chief of Engineers of the U. S. Army Corps.

The legal theories presented by the re­cent surge of environmental quality suits have been quite diverse, ranging from grandiose claims of the right of the general populace to enjoy a decent environment [e. g. Environmental De­fense Fund, Inc. v. Hoerner Waldorf, Civil No. 1694 CD.Mont. filed Nov. 13, 1968); Fairfax County Fed'n of Citi­zens Ass'ns v. Hunting Towers Operat­ing Co., Civil No. 4963-A CE.D.Va., filed Oct. 1, 1968) J, an embryonic concept which perhaps offers environmentalists the greatest promise (see, note, 56 Vir­ginia L.Rev. 458 (1970), to less ambi­tious and more narrow assertions that the citizenry can obtain judicial direc­tio)1 that governmental agencies meet procedural requirements. E. g., D.C. Federation of Civic Associations, Inc. v. Airis, 129 U.S.App.D.C. 125, 391 F.2d 478 (1968) (failure to have public hear­ings) . One commentator has suggested that only the public trust doctrine has the "breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal ap­proach to resource management prob-

304 324 FEDERAL SUPPLEMENT

lems." Sax, The Public Trust Doctrine in Natural Resource Law: Effective Ju­dicial Intervention, 68 Mich.L.Rev. 471, 474 (1970) . . The legal theory of the plaintiffs in the present suit is that they have the right to prosecute a qui ta7n ac­tion pursuant to Sections 407 and 411 of Title 33, U.S.C .. to obtain an injunction prohibiting the industrial defendants from dumping refuse into Texas water­ways without a permit in violation of § 407, to obtain penalties provided by § 411 for each such violation of § 407, and

. to obtain an injunction requiring de­fendant Stanley R. Resor, Secretary of the Army, and defendant Frederick J. Clark, Chief of Engineers, United States Army Corps of Engineers, to establish standards for the issuing of permits al­lowing the dumping of refuse into navi­gable waterways and tributaries of navi­gable waterways in the State of Texas and to apply these standards, once for­mulated, to anyone desiring to d~mp refuse into those navigable Texas water­ways protected by 33 U.S.C. §§ 407 and 411. The plaintiffs have stated their cause of action no broader than §§ 407 and 411 of Title 33. U.S.C. Thus, plain­tiffs must establish that they may. by this civil action, sue to enforce sections 407 and 411, or else the action must be dismissed for failure to state a claim upon which relief can be granted.

Section 407 of Title 33, U.S.C .. is a part of the Rivers & Harbors Act of 1899 [March 3, 1899.c. 425, §13. 30 Stat:. 1152], and its provisions are as follows:

It shall not be lawful to throw, dis­charge, or deposit. or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other

. than that flowing from streets and sewers and passing therefrom in a liq­uid state, into any navigable water of the United States, or into any tribu­tary of any navigable water from

which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordi­nary or high tides, or by storms or

. floods, or otherWise, whereby naviga- · tion shall or may be impeded or ob­structed: Provided,· That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States offi­cers supervising such improvement or public work :· And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any materi­al above mentioned in navigable wa­ters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever . any permit is so grant­ed the conditions thereof shall be strictly complied with. and any viola­tion thereof shall be unlawful. Section 411 of Title 33, U .S.C., pro­

. vides for the following penalties fO'r vio­lations of section 407:

Every person and eVery c<;>rporation that shall violate, or that shall know­ingly aid, abet. authorize, or instigate a · violation of the provisions of sec­tions 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be pun­ished by a fine not exceeding $2,500 nor less than $500, or by imprison­ment (in the case of a natural person) for not less than thirty days nor more than · one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be

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BASS ANGLERS SPORTS. SOC. v. U. S. PLYWOOD-CHAMPION PAPERS 305 Cite liS 32-1 F.Supp. 302 (197l)

paid to the person or persons giving information which shall lead to convic­tion.

Section 413 of 33 U.S.C. provides that "[t]he Department of Justice shall con- . duct the legal proceedi ngs necessary to enforce the provisions of sections * * -II- 407 * * * 411 * * * of this title; and it shall be the duty of United States attorneys to vigorously prosecute ... * *."

Clearly, §§ 407 and 411 are solely criminal statutes. Section 411 makes the acts proscribed in § 407 ".misde-

. meanor" offenses and provides that upon "conviction" of such offense the convicted person or corporation shall be "punished" by "fine" or "imprisonment." See, Shipman v. United States, 309 F. Supp. 441 (D.C.E.D.Va.1970). Nothing in these statutes intimates that a civil enforcement procedure is authorized. Under these circumstances, these sections cannot be enforced by a civil action. United States v. Clafiin,97 U.S. 546, 24 L.Ed. 1082 (1878).

. [1, 2J Section 413, Title 33. U.S.C., provides that the Department of Justice "shall conduct the legal proceedings nec­essary to enforce the provisions of sec­tion ... * ... 407". No room remains for implying that any others may sue to enforce these statutes. In the exercise of its responsibility for the prosecution of federal crimes, neither private citi­zens, the legislature nor the judiciary may interfere . E.g., United States v. Cox, 342 F.2d 167 (5th Cir. 1965); Smith v. United States, 375 F.2d 243 (5th Cil'. 1967). Thus, plaintiffs may not take it upon themselves to obtain convictions under §§ 407 and 411.

The plaintiffs' theory of course is that they may maintain the suit under §§ 407 and 411 as a qui tam. action. A qui tam. action, or action by common informer, . has been defined as a civil proceeding brought "under a statute which imposes a penalty for the doing or not doing an act, and gives that penalty in part to

324 F.Supp.-20

whomsoever will sue for the same, and the other part to the commonwealth, or some charitable literary, or other insti­tution, and' make it recoverable by ac­tion." Bouvier's Law Dictionary (3d ed). The action's appellation comes from the Latin phrase "qui tam pro domino rege quam pro se imposo sequi­tur," meaning "who brings the action as well for the king as for himseli." In 1905 the Supreme Court of the United States observed in Marvin v. Trout, 199 U.S. 212, 225, 26 S.Ct. 31, 34, 50 L. Ed. 157 that:

Statutes providing' for actions by a common informer, who himself had no interest whatever in the controversy other than that given by statute, have been in existence * * * in this country ever since the foundation of our government.

In 1943 the Court again recognized that "Qui tam suits have been frequently permitted by legislative action -II- -II- +:-"

United States ex reI. Marcus v. Hess. 317 U.S. 537, 541 63 S.Ct. 379, 383, 87 L.Ed. 443. Plaintiffs have cited a num­ber of federal statutes which presently authorize qui tam. proceedings by the common informer.

The plaintiffs assert that the provi­sion in § 411 that one-half of the fine imposed for violating § 407 is "to be paid to the person or persons giving in­formation which shall lead to convic­tion" is to be understood as a Congres­sional authorization of qui tam actions to enforce the Act. Although § 411 does not specifically authorize the qui tam ac­tion, plaintiffs argue that it. does not specifically deny the action either and under these circumstances. should be con­strued to impliedly authorize such a suit. Plaintiffs cite Justice Black's dic­tum in United States ex reI. Marcus v. Hess, 317 U.S. 537, 541, fn. 4, 63 S.Ct. 383, wherein he stated:

Statutes providing for a reward to in­formers which do not specifically ei­ther authorize or forbid the informer

306 324 FEDERAL SUPPLEMENT

to institute the [qui tam] action are construed to authorize him to sue.

Justice Black's dictum would appear to state the law too broadly. The qui tam action depends entirely upon statu­tory authorization, as it has never found its way into the common law. The ac­tion arises only upon a statutory grant. The fact that someone is entitled by statute to share in some penalty or for­feiture does not · necessarily also give such person the right to bring anorigi­nal action to recover such penalty or for­feiture. There must be statutory au­thority; either express or implied, for the informer to bring · the qui tam ac­tion. When the statute is silent as to whether the qui tam action is autho­rized, . and nothing can be gleaned con­cerning congressional intent from the circumstances surrounding the passage of the statute then perhaps Justice Black's construction in favor of the qui -tam action may be justified in many in­stances. But Black's construction ob­viously is inappropriate whenever the statute's language, by necessary implica­tion, precludes such a conclusion.

The Rivers and HFbors Act of 1899 contains no express statutory authority for the qui tam action. To the contrary. the language of § 411 of the Act by nec­essary implication rules out the qui tam proceeding, for the statute provides that the informer is entitled to part of the fine only upon the conviction of the per­son or corporation accused of violating § 407. Without such a conviction, no fine can be imposed in which the informer can share. The informer's rights de­pend upon (1) a criminal proceeding being brought under § 411; (2) a con­viction being obtained in the criminal proceeding; and, (3) the convicting court imposing the fine as punishment for the offense. The informer's rights therefor are en tirely dependent upon and inseparable from the criminal pro­ceeding brought by the Department of Justice, the party authorized to institute such suit. Clearly, then, the qui tam civil action is not authorized .

[3] Nor may plaintiffs proceed in this suit to compel the Secretary of the Army and the Chief of Engineers, Unit­ed States Army Corps of Engineers, to set standards to require permits under the provisions of 33 U.S.C. § 407. The "Refuse Act" contains no statutory man­date which requires these defendants to develop and implement a set of pollution · standards governing emissions into the navigable waters. Section 407 states that the Secretary of the Army, when the Chief of Engineers is in agreement, may permit the deposit of refuse into navigable waters, within limits to be de­fined and under conditions to be pre­scribed by him. There is no implication that the Secretary of the Army or Chief of Engineers must act except when a permit has been applied for, and then it is clear that the conditions to be pre­scribed are to relate only to the particu­lar permit for which the applicant seeks. Section 419 of Title 33, U.S.C., does spe­cifically refer to § 407 and authorizes the Secretary of the Army to develop a per­mit system. The relevant portions of § 419 are as follows :

The Secretary of the Army is autlw­rized and empowered to prescribe regulations to govern the transporta­tion and dumping into any navigable water, or waters adjacent thereto, of dredgings, earth, garbage, and other refuse materials of every kind or de­scription, whenever in his judgment such regulations are required in the interest of navigation .

Emphasis added.

Although § 419 is adequate authority for the Secretary of the Army to devel­op and implement general standards for a permit system, it in no manner com­mands him to do so. His decision as to whether or not to promulgate such regu­lations must be considered discretionary. Because the Secretary of the Army and the Chief of Engineers, United States Army Corps of Engineers, have no legal duty to set comprehensive standards and require permits under the provisions of

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UNITED STATES v. SARS OF LOUISIANA, INC. 307 Cite as 324 F.Supp. 30. (1971)

§ 407, this court has no authority to di-rect them to do so. McWhorter v. Ken­nedy ex reI. Settle, 324 F .2d 793 (8th Cir. 1963); Hudgins v. Circuit Court of Chesapeake, Virginia, 294 F.Supp. 258 (E.D.Va.1968). Accordingly, the plain­tiffs have stated no claim against these two governmental officials upon which relief can be granted.

[4J The court is also persuaded that it lacks jurisdiction over the person of the two governmental defendants named in this suit. Unless acting illegally un­der the statutory authority vested in them, or unless the statutes under which they are acting are unconstitutional, these governmental defendants, as agents and officers of the United States of America, are protected by the doctrine of sovereign immunity. Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 LEd.2d 168 (1962). Plaintiffs make no material allegation that these governmental officers exceed­ed their authority and, of course, do not seek to have the statutes under which they are acting declared unconstitu­tional.

The question posed earlier-whether plaintiffs may by this civil action sue to enforce §§ 407 and 411 of Title 33, U.S . C.-having been answered in the nega-

. tive, it must also be concluded that · plaintiffs have failed to state a claim upon which relief may be granted. For

. this reason, and because the court lacks jurisdiction over the Secretary of the Army and the Chief of Engineers, Unit­ed States Army Corps of Engineers, the case must be dismissed. Sections 407 and 411 of Title 33, U.S.C., may not, in their present form, be added to the pub­lic's growing arsenal of judicially recog­nized causes of action in its continuing struggle to obtain the abatement and re­versal of environmental degradation by court action. The court so orders.

Counsel for defendants are directed to SUbmit an appropriate judgment.

UNITED STATES of America v.

SARS OF LOUISIANA, INC., Gulf Soap Corporation, George F. Theobald, Felix

R. Sapp, and Arnold Q. Ford. Civ. A. No. 71-6.

United States District Court, E. D. Louisiana,

Baton Rouge Division. March 30, 1971.

Suit to restrain violations of Feder­al Food, Drug, and Cosmetic Act. The District Court, West, C. J., held that the evidence established that defendants had cured all of deficiencies which existed in their animal food processing plant and that there was no reason to expect that they would commit violative acts in the future.

Judgment accordingly.

1. Injunction <§:::>128 Evidence established that all of rec­

ommendations made by inspectors had been carried out and that defendants had made their animal food processing plant a "safe" plant for production of uncontaminated food products. Federal Food, Drug, and Cosmetic Act, §§ 301(a), 302(a), 21 U.S.C.A. §§ 331(a), 332(a) .

2. Injunction <&=>22 Injunction could issue if it was rea­

sonable to expect that defendants would commit violative acts in future, despite discontinuance of such illegal conduct at time injunction was sought. Federal Food, Drug, and Cosmetic Act, §§ 201(f), 402(a) (1), 21 U.S.C.A. §§ 321(f), 342(a) (1).

3. Injunction <&=>128 Evidence established that there was

no reason to believe that defendants would commit in future acts violative of Federal Food, Drug, and Cosmetic Act. Federal Food, Drug, and Cosmetic Act, §§ 301(a), 302(a), 21 U.S.C.A. §§ 331 (a), 332(a).

EXHIBIT 7

EXHIBIT 7 ATTACHMENT TO:

SELF-EXECUTING AFFIDA VIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746}

NOV.- DEC. '1974

I

M8STEH® MaGaZINE

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Tournament Trail

John Farr Wins Clark Hill Finals • John Farr, a 35-year old Anderson, S.c. music store operator, didn't have the slightest idea about making the Miller High Life BASS Masters Classic when he entered the All-American Tournament at Clark Hill Reservoir Sept. 25 -27, near McCormick , S"c. '

His track record in national tourna­ments was unimpressive to say· the least.

"Two years ago at Lake Kissimee in . the Florida National, I didn'tget to make

a cast. My boat sank in rough water," Farr recalled.

"The next year in the Florida I~wita­tional, I was at the right place at the wrong time,"· he said . Farr believes he located the area in Rodman Pool where winn~r Larry Hill caught 60 pounds of bass In 60 minutes , but the school moved in after Farr departed.

Farr figured his luck might improve on a neighborhood lake, but he sold his boat. The Farr family was busy building · a new home. A .friend loaned him a boat. .

At the first we:g~-in at Hickory Knob State Resort Park, Farr ranked sixth in the field of 163 . His ten bass limit was 8 Ibs .. 3 oz . shy of leader Bill Dance's 23-15.

. The next day, Farr climbed to fifth with another limit and a two-day 25-8 score.

.Danny Whaley, a 28-year old raIlroad .engineer from Abbeville, S.c., seemed In. the driver's seat with a rwo­day creel of 37 -\. He had apparently cornered the . fish on . a ledge along the old Savannah River channel.

To everyone's surprise, Whaley and tournament favorite Dance of Memphis, Tenn: located very few fish in the finals . AI Lindner, who had limited twice and ranked second, failed to boat a keeper 12-inch bass. '

Farr had a 6 lb. 14 oz: largemouth. He ended up with eight bass and 16 Ibs. 2 oz. at the final weigh-in. His 4 [ Ibs. 10 ozs. gave a [ lb . 3 oz. edge over ~aley, who could manage only two

. bass (3-6). Dance dropped to sixth (33- [ [), and Lindner faded to ninth (3[-7) .

. "Ididn't have the slightest idea about ~lOntng ," said parr. "My hope was that It would be enough .tostay in the top ten . "

6

Farr said , "I fish Clark H ill the (Continued o n page 74)

SCOTl c--------...,--~ on the By RAY SCOTT

~eginning Jan. I, 1975, mem­bershIp in BASS will go from $10 to $12 per year. This is a decision we have hesitat~ making, and tried to avoid. Tremen'dous cost increases, in every phase of membership services, have forced the decision.

Our goal h~ been, and will con­tinue to be, top quality BASSMASTER Magazines and member services. BASS is the finest organization of its t)1>e, and we won't sacrifice your benefits and en­j~yment by haphazard Iy slicing away pIeces of the pie.

The cost of magazine publishing has skyrocketed at an unbelieyable rate · Paper COSls alone for BASSMASTER have increased 67%, since October 1970. Mailing costs jumped 57% in a three-year span. The U.S. Post Office has more uppercuts for staggering publtshers. ~he post office has imp[e­mented step Increases that will escalate postage costs 127% be tween January 1974 and July 1976. .

Many. alternatives to raising dues were conSidered . We could eliminate the "Tackle Test" program for renewing members. A majority of the lure compa­ny advertising space you see on these pages is purchased In lures - not dol­lars. From the letters and commentS yo~ hav~ indicated that BASS member~ enJoy thIS "fi~st. cast" opportunity with new lures: ThIS IS also a unique program ~ha~ pr~vldes tackle manufacturers with inSIde lOformation about bass fisher­men's ideas and tackle needs . .

Another alternative suggested was to reduce the number of pages from 96 to. 80. and eliminate the four-color edltonal coverage. This is a route some publications have · taken. It was tempt­Ing. The cost of print i ng a single issue of BASSMASTER (this does not cover postage, composition, story-photo fees etc.) has increased 52.4% . '

To me, thi s would have cut the ~eart out of BASS. Instead of sacrific­Ing BASSMASTER, it was our decision to advance, not retreat. This issue of

BASSMASTER has 16 addiiional pages, a majority of which are devoted to editorial coverage. There is a wider use of four-color art and illustrations. .. It is our goal to continue to improve BAS~ member benefits; not reduce ser­vices . It is our responsibility to continue to support conservation and research projects; not hedge on our promises. .

. . ~ith the $2 dues increase (the price .of a Single lure); BASS can continue to improve its benefits and s·ervices, sup­port worthy conservation-research programs, and fIght innation .

The organization of the Bass R~search · Foundation is the greatest thln~ to ~ap~en for bass fishing, since the Don t KIll Your Catch" program. The Bass Anglers Sport.sman Society has contributed over $40,000 to helping eSLablish the BRF.

With your continued support, - together ~e'l\ make BASS a stronger

conservatIOn group, and maintain our s~an~ard as the best outdoor organiza ­tton In America. " Here . is ~ne parting thought on . cost cuttlOg. The expense of process~ 109 a BASS member renewal for more ~han a single year is "[ess" than process-109 a one-year renewal. It enables BASS to pass this "savings" along to you. A three-year renewal in 1975 will be $29.95 . By takingthe three-year renewal, rather thal1 year-to-year mem­bership, you'll save $6. What's more you'll actually be paying less than th~ prevIOus $ [0 per year membership:

There is one way you can help reduce costs. That's to renew your mem­bership promptly. On the average, each member receives 3.5 notices before renewing. .

BASS Chapters Growing . BASS has passed another

mtlestone. That's the goal of more than [,000 affiliated BASS Chapters. The Chapter program should bea part of your bassin' life style. If not, contact the BASS Chapter Dept., P.O. Box 3044, Montgomery, Ala. 36109, for details on how to organize a Chapter. •

BASSMASTER MAGAZINE

. EXHIBIT 8

EXHIBIT 8 ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS m

[28 U.S.C. § 1746]

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r.ucon. G.J.. M~ 15. 1992 9 s«tJons - 158 pa(es -

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The basSlllaster Fo.rtu~e. ha~ found Ray W. ·Scott·Jr.

· ~hanks to abas&-fishing $ociety CopyTigltt ©1992, The Macon Telegraph

Editors note: 1hIs article got 'Its start In 1.989 wDen Its author, Beau Cabel~ became a member of the Bass Anglers Sportsman

Society, That summer, Cab­ell attended a BASS tourna­ment and be­dime . Intrigued . by the organI­zation. Over the next few years, he began to re­search BASS 00 his own. His

research Included poring over publicly available doa.rments and Interviewing . various attorneys; and others. .

He began . to wooder how a group calling Itsetf a U socIety" could be "owned" by any one person or small group of people. In the spOng of 1.991., Cabell ~ght the results of his InquJ. nes to the attention of editors' at The ~acon Telegraph. A dedSlon was made to form his ' research Into a story. What follows Is the result

The T elegtaph sent a pre-publJ. catloo draft of this artlde to Ray W. . Scott Jr. Which was received on Feb. 1.8, according to a BASS Inc. executive. A letter accompa­nying the draft asked for a re­sponse. The BASS Inc. executive wrote that the organization would like to respond and would do so by Feb. 28. So far, however, no . specific response has been re­ceived A representative of BASS Inc. has saId he Is worldng on a response.

Cabel~ 37, has been employed by the Telegraph since 1.984.

. This series was edited by. assis­tant metro editor Greg .!ones and special projects editor Robin Sta­cy.

By Beau Cabell . The Macon TeIe(Iaph

'Ibe success of Ray WilsonSrott Jr. just might be the ultiJ:nate fish story. .

'Ibe 58-year-old Scott Is the char· ismatic president of the Bass .An­glers S{Xlrtsman Society - "'the world's largest fishing organiza. tion." .

How he made the· transformation . from door-bxloor insur'aoce sales­

man to multimillionaire mOOia Il1O­gul seems to epitomize an Ameri· can dream. '

"Poverty in 'my case was my greatest asset," Scott has said. '1 made it the hard way, the old· fashioned way. I grew up and scruffed and cooned and badgerOO and begged antl pleaded ani r0-manced and ' I've used. every means there was to make it happen. " . , How Scott laid claim to a sub­stantial fortune was fur more sim­ple:

In l$7, he founded a fishing and conservation society known as the Bass Anglers Sportsman Society of America, instaIIOO himse!f as presi.

· dent and began publishing Bass-· master rttagazine. In 19ffi, he

formed a rorporatiDn called Bass Anglers " SportSman . Society of America Inc. Then, in Iml. without an explanation or a vote by mem­bers, Srott sold the rorpxation. in­cludirig the magazine, for "'more money tl)an I rou1d ever spend ...

In Websters dictionary, a society is defined as "an organized group that oomes together for the shared pUi1Joses of its members." An unin­rorporated society - its property and its publications - belongs to its

· membership, acmrding toauthori· ties on association law.

The . tim romplete niission state­ment from BASS came in the . Slring of ~ in the very first issue of Bassmaster magazine. '"The membership of the BASs AngJers S{xJrtsman Society (BASS) is 0l8l

. to anyone who loves bass fishing and shares the desire to advaree om- Bass fishing sport, and the Soc:i­ety's IJUrP)ge, .. it said in part. . The statro ~ Included joining ~. for cooservation and the . preservafun and improvement of bass fishing. . These . days, when &:ott . talks .

aOOut BASS's' origin, he says he was just seIling a magazine. "Yeah, it star1ed out as a society. 'That was to get your attention. rn just be very frank with you: 'Society' sounded much more classical than ~. or 'entes:prise' or 'as­sociates' or something of that. sort. It was designed to get you in. I fig­t.Ir6i if I coUld get yoo in by hook or crook. rd keep you." he said duro ing an August interview with The Maron Te/.egraph at his Pintlala. Ala .• home; .

In a ~ Audu.lxJn magazine In­teniew with baseball legend Ted . ~ Scott was quoted as say. Ing. "'Every time I see one of those ~) patches, I get a lump, tight ttl my wallet." Williams wrote that "(Soott) has never pretended other­~. " ,

'Swell that cry to 10,000 _' BASS, so nameHor the predat0-

ry gamefish its members ared€di­cated to pursuing and preserving, was "founded primarily for the pur. pose of ronserving our rivers and streains lOr the benefit of the public ani allSIXlr15men." according to a 1970 BASS legal brief filed in U.S. District Court in Tennessee in an antiiX>~tion suit.

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'The groqp was founded in l$7 by Scott, who Quickly set about re­cruiting its first member. 'When he pocketed Tulsa, Okla., fisherman Don Butler's $100 for a lifetime membership, BASS was born. Scott would later say that he :1Jrobably used it for an airlare home."

By spring &B, Bassmastermaga· line ~ lxlrn. The inaugtiral issue .:_._- - - .- . ~

a:n1:aiooi many arOCles aM phoIx>­graphs d:naIed by BASS members. A staremm said 'the magazine Was

" "fush!merl to Serve the interest of tile ,BASS ,lt1e'IllheClliP •• •. This is your magazine."

, : Soott ooon parlayed his new vi­sion for a group of angling (X)llS5"­

" vationists into 2,(0) memberships in , BASS's first year. ' With,the fervor of a fireand.brimsto mfuister, he constantly' preachOO that an orga­ni2lrl effiJrt was neOOed to save the nation's waters from pollution.

"A lone voice roirrg out against a polluter is la;t m the shufl1e. But swell that cry info IO,ro> and rur in­dividual' wires will be heard am our demands met," he was quoted as saying in early 1$J by, TheSt.ate neYf'SPillb: in Columbia; S. C_ ,

And the JDOCe be preoched. the mere anglers ,lI11S'i'letOO with appli­cations to the fledgling oociety, rev­erence for Soott's leadership and dollars for the cause. '. ,

"With membership in BASS, ~ ~ a letter fir 10 lousy dollars for Cl1rist sake," Scd:t sald in an iDlEr­view with.the TeIRgraph. ~ ou got a pernonal letter from Ray Soot1 and I sald: 'I am 00 glad you bad the wisdoot to berome a member of our society. Fishing takes on an all new meaning bocause you're' shar­ing it with a fellowship, afratemity of men who are involved in ' the same eoc:leavQr.'

'-The key to it was, I Was wanting hiri1 to renew. .. '

The society had . a pheoomenal growth rate during its infancy and in the~, that followed. ~Aild the magazine w-..s growing," Srott said. 'il1e next year (l!m), I had '6,&X) 'total. And then the next year 25,OOJ, and that 64.,00), and then, I forget, it just went - pow! - sky. ward. , . ..

. 'Tm probably a goOO Iisherman," Soot! said, "but I'm better at catch­ing fishermen. '" And they eat a lot bette-, too, by the way. They'eat a lot better than bass."

'Go for the nickels' Flamboyant, taJkative, with a

selfo£tyled flair for promotion, Scott looks and sounds like one of the world's greatest salesmen.

"Ray could sell the pope, a double bed," ·C. Boyd Pfeiffer, a IJassma.s. ter rontributor. sald in a recent Nei.asux?t?k magazine article. , ~ are usually fu.scinatOO

by the man, wfn;e easy smile am gift of gab rome right at you: '1 think my greatest ronfidence was my ability to lmow that if I bad a good proiud, that I rould sell , it and create a market," Scott told the Telegraph . '

Srott can come across like a n0n­stop ~ machine. "Every. thing that rve done in my life, in­cluding the insmance business, was bocause fd developed a &f1eme and a plan and a means by which I rould sen you," he said. "And you would, jn a convulsion-like' way,

Share' with" =_ ..... me your UJt:UD. • ••

"'Hey, the!re's no(bing new about that," Scott said. "Olrist did it 2,OOJ years ~ didn't he? He started out - same scheme, I didn't get it from him, he didn't get it from me - but my point is that if you've ('Pt, some. t:hing that's goOO, poople want to share it." ,

lfis salesmanship is deeply rooted in his tamily heritage. Scott talks fondly c{ his entrepreneurial father and the lessons his da1 taught him of his experience; during the De­pression.

Ray W. Soott &., a part-tinie postman and partner with his' brothers in a dry-cleaning busiress, "Was a fine Ouistian man wh<> workOO like the deW," his son sald. He owned three-wbeel ice<:ream car1s, am paid about 15 men a c0m­mission to jJeddIe his wareS aroum Montgomery .

Scott 0"00its his sua:ess to his fa­ther's advice. "He taught us you don't have tQ go for the big kill," Scott said. "Daddy's line until he died was: 'Nobody had any money dtning the Depression, bj.l1 every.' txxly had a nickel.' And Daddy went afta- the n:ickel - Daddy went after the nickel."

As a yomJg man. Ray Scott Jr. worked to put his father's ' fonnuJa for sua:ess into action .

At 19, he took a debit.insmance ~ute (ro calIa! bocause premiums m arrears are deducted from the salesman's salary) and "wotmd up bustling the ,alleys and back ............... of Phenix Uty Ala ' oOU..1:I:X>

the ,., at that time,

gambling and underwotid tal <X the South," Soott wrote in~ autobiography, ~-~. and Selling. • • ~Y5

'The mob may have oontrolled. the money machines of Phenix City, but none of them stooped low enough to venture Into the '~, can and beer bottle jungle that be­came my sales fenitoly," he wrote. "In this 'romer of Phenix City lxJth sides of town were on the ,Wroog side of the tracks. •.• '

'1 waIkOO the same black neigh­~ route week after week, go­mg from house ~ house, ,building to OOiIding" coIIedirig 10 to 15 cents premium 'fi"Olli" everybody wID bad our burial insurarx:e. I Was e:xpoo. ted to bring in $2ro a week in pre­miumS, then, in my spare tiine, sell more policies.

"I bad mOre ~ ~ spare ' time," be wrote. , '

'1 was running, chasing that money up one aI,ley lind down the other, watching it sneak info one beer joint, then creep out a tattoo parlor. . . . '

,'The fellow that made it in debit ~ Was the fellow who coo.Id get tI:JI:re folks wOO ~ paid, to pay. That testl;rl. yom- skill, sharp­ened yom- reflex, kept you en the move and kept ~ taIidng."

The on~ that got away By 1974, BASs was reeling in

enough money for Scott to move in-, to a new home in Monlgomery, one that's appraised for lax purposes at aOOut W,rm. Tharsame year, the society bought an $00),00) Beech­craft King Air. In his Bassn1aster colwn,n, srott wrote that the bJrbo. prop aircraft was fur takii1g mem­bers to hot fishing holes in Mexico.

Please see lAWSUIT, llC ..

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Lawsuit: Scott, others have done $75 million in damage to BASS Continued from page 10C

But a back1ash was funning. BASS charter member Qri-ge

Marzeck said he became disiIlu­sionro with Scott in the early l!rns because he thought Scott "u9:rl me and dumped me. "

Marzeck, of WestBurlingtm, Io­wa, rocalls that Scott's 00it0rials in Bassmaster sounded like "John Muir (fotmder cf the Sierra Dub) and A,ldo LoopoJd (natur"alN am author) rolled in1x> one;"

So "it didn't occur to me until somewhat later •.. that this guy wasn't all that gtmgbo alxxrt· fish­ing .for the sake cf fishing a: to tro- . mote for the p.tre sake cf tromOt· ing a sport," Marzock. a retirOO ei1gineer who he1pej Scott l"eQl.1it new members during BASS's infun- . cy, said in a telepOOne interview.

After giving Bas.smaster maga. . -zinc free articles, ~ am

paintings, MarzOOc said be realiml: Th1 going to quit this because I've helperl make an insurance man in­to ~ nmlfubilliooaire. "

Cllarles D. Kelley, the director of the .A1abama Game and Fish Divi­sion. was ~ who was unhap­py. "I never did join BASS," he said. "I've got an hOnorary life membership that just showro up in the mail . Ai the time I was (listed as being) on his board cf directors I had never asked for a member· sOip. "

Kelley said he fin;t thought BASS was a non-profit growl for "ponu­tion controI. to try to dean up the waters ." He said he asked an a<>sis­tant attorney ~eral to contact Scott and insist that he remove his name from the board of directors listing on BASS stationery, "be­cause I couldn't lend my name In that private. profit rompany. Well, we didn't bear a damn thing from Ray."

Three or four months later, Kel· ley said he saw BASS's new letter· head. '"The damn fool changa:l the name to board of advisers. and still had my name on there." Kelly said. "We wrote the second letter and demanded that he get my name off as a member of his board of advisers or anything else. . . . By that time he'd gotten the use out of us he wanted . "

Emory Josey, outdoor colunmist for the Te1Rgraph. said Scott "waIkOO.'on a lot of poople getting _ (where be is Way), and I was one of thern. " -

Jooey said he gained wide' atten­tion for catching the nation's largest baSs of the year in uaJ. In 1970, "Soot!: folmd rut about that and he came to me and said. 'I want you to help organize a BASS chapter in Middle G€orgia,'" J~ said. "And I

we did, a half dozen of us got to- ' gether and organzied the Middle Georgia Bassmasters in Warner . Robins ....

"He said. 'I 00:n you In help me open up rome c:baptm; and then I've got a job fur you in Montgom­ery . N Jway rode the circuit for aOOut three years preaching BASS, attractirig members across the state. -

But someone else got the pr0m­ised job. He said, .. 'Enn"y, I don't need you anymore. I've already used you.'"

Jc:s!y agrred that Scott ~ BASS by saying .. -nus is a oociety aM we are going to promote fish­ing. It's going to belong to the members .... We're going to make sure that when our kids and our graOOkids rome along tber'e's going to be rome bass fir them to catch. '

"Of course, that ~ not the No. 1 IrioritY," Ja:ey said. 'the No.1 . priority - ana you have' to know · . the man to know ex:oct1y where I'm ooming from - was to line Ray Scotfs pockets."

Scott said he isn't botherOO by his detractors . "If I don't give him what he wants for that $1.5 a year . " in that magazine, he will leave me," he said . . "Which is what he . should do."

'A deceptively similar name' On May 16, 1$), Scott - with his .

then-wife, Eunice, and /3assmiJSter Managing Editor George Davidson - filed articles cf inroqx>rafun for the Bass Anglers S{x:Jtisman S0ci­ety of Americ.it, Inc.

In documents filed in Montgom­ery County probate court, the Scotts and Davith>n declared their shares in the organization were be--­ing paid for by ..... acrounts rereiv­able, offire equipment, inventory, fishing ~t, mailing lists am

. the IJa.ssmaster Magazine subject In the unpaid obligations of Ray Scott, D.B.A. (doing business as) Bass Anglers Sportsman Society •. N

Acmrding' to court records, Ray .. Scott owned 99.00 perrent of the . ooqxration. and his wife and Da­vidxJn each owned a · .01 percent share.

Once thoc.e papers were ~ of· ficial by Probate Judge Perry Hoop­er's signature. the new OOlpolation assumed ownership of the society's JnQ;t valuable asset, . BassmasIer­magai:ine. But his editorials in that publication. never mentipnI:id or ex· plained the legal maneuver.

In Scotfs column in the summer 1900 OOition of Bassmaster, there was no mention of incorporati£n; more than half the colmnn was de­voted to €21COtU'<Iging ~ to start local BASS clubs.

Scott wrote a: list of suggestOO by. laws for the smaller associations which woUld be affiliates of the "National Society .. " These BAss­sancfuned by~1aws called for the h­eal chapters to be ~ and to hold elections each December .

At the request of the Te1Rgruph, .~ William A. "Bill" ~

. ry, a law professor at GeOrgia State University and a reoogni2OO authoc­tty on agency and partnership law, reviewed copies of early &zssmaster magazines, oourt documents filed by BASS, and articles with state­ments by Scott as weD as his testi­mony before the U.S. Senate:

"What (Scott) did, in legal throly, is he SYPhoned off an opportunity belonging to the society and he gave it at no ro:;t to his, let's call it his iocotporated {XX:ketbook, a 00('.

poration he owned 99 percent. Un­der tmse circumstan.cei, doesn't he have an obligation to account for the rorporation? .. ,

"All cf this evidence," he said in an interview :ll his office after his review, "is oonsistent with the thoo­ry that the magazine is owned by the members - or the membership - and not by anyone privately .

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!bey give the BASS Pt.ll1lOses lJ:e"e (in the first issue of the maga­~). All of these are oonsistent with .. " a non-profit orgahilation. a ~le organization rather than a pnvate organization to make money for (its) oWners .. . .

"If the people l1.lI1Iling the unin. ~ asrriation use ass0cia­tion assets . for private purposes," Gregory said, ~ assets in law belong to the members. Not to the poople who ran off wiJh the mon­ey ... . In a t"l~J.v..~A ~-.:-•• . J

~IOJlC J,luavrw ·m anu-ary. Scott said the members did oot

vote to ~ 'm did they need to. 1t was just a ~. ship tbm," he said. ,

He said members Wffi! not enti­tled to any sort of ownership. '"There were members, per se, of the society. But there was nothing regarding ownership. They were participating, duespaymi Ine!Ilbern . . _ for the dues they tE:'reived cer­tain .specified benefi1s and priviIeg. es. That was quite clear'" &:ott said. •

"Nothing beyond. that, there ' was never any expression they would ~:--e ~ rights or be able to par­ticipate m coqxxate affairs or this type of thing," Scott said. "Never. Ever. Not Once. "

'1 think at the JXJint where he started to solicit ~ be then has injected into his mIe propri. e!orship' the q>eratim of whatever the ~ strtutes are hI respoct to \D1lDCOrporated associations," said Syracuse Univm;ity law Pro­fesror James K. Weeks in a tele­phone interview with the TeJ.e. groph. "'But if they're similar at all to the New Yoric ones, obviously, that vests rights in the member­ship.

'"So whatever the assets of that asoocia,tion were" despite the fact that they starts:1 out as originally, his brain<hild ... it can be-argued ~ this (Bassmaster magazine) was. the principal asset of ~ asso­ciatkn and that re:iaiDly any fur· ther . disposition Of that particular asset '" was romething that would have ~ approval cf the mem­bership."

Gregory agre:d; "BasOO on what rve seen. like in this first issue (of Bassmaster). at least it's a jury questioo as to what are the rights and priviledges of membership and who owns the magazine. But, it's ceriainIy not an obvious, d€cided is­sue in favor of the guy who's nm­ning the whole show now that . this is his private property. In fad ev­ery in1ication is to the axrtrary .

Jllere's nothing Wrong with soIDelxxly Selling a fishing maga.

zinc," Gfega-y said. wbut the prob-. lem here is this magazine has blurred the. line between being a nonprofit group and being a for­profit group."

'1 debatOO: whether to make it a profit o~ nonprofit (organization): Scott said. '1 rould have gone e· ~ way. '" A Writer friend of I1lIf1C •.• tipped the scales towanl b¢ng a profit <riented. And frank· ly, he was so right bocause he said: 'Ray,' he said. What ditference does it make?' He said, '1 don't particu­larly like I1OOlX"Ofi.t organizations • He said, "There's something , . sinister about ,very

nonprofit. • •• "In looking back at it, poople

don't join BAS') bocause we're prof.. it-making or 1lOrl-pI"dit. They join . ~ of what they get. Can't for­get that. There's nothing noble about it. I rould not live over the pious few that live for conservation and clean waters. That's baloney . ~ don't care aOOut that," Soot!

Weeks, who has taught nonprofit and association law,' said Scott, "seems to flpat in and out of the coCporate designation whenever- it suits his purposes.

"At one point, he calls it a society - and this is all after that . _. in­~" Weeks said after re ' VleWU1g, on request of the TeJ.e. gro.ph. membership applications, early editions of Bassmo.ster and copies of BASS lawsuits filed in oourt.

"Sometimes he taIks ahJut the society, sometimes he fails to men­. tion the c::apx-ate 'Ioc.' title. And ~ ~ ~ the CX>rJXXate des­~ and the lOOety designation i:nten:hangeabl," Weeks said. . '1 think there's a poosible ronfu.

SlOll that can arise there. Whether he does that inadvertantly or pur. pooely is, <i" course, difficult to tell. But it sure as hell is no not.for.pro{·

·it corporation as far as I can ooe. "It appeai-ed to be an ~

rated association Irior to (the moor· porati~)," Weeks said. But, '1 don't think at any time it's reached

the level of a not.for profit corpora· . tion.

"It's hard to telJ ' what exactly (BASS members) are joining." Weeks said. 1bey're not buying any stock in a corporation. 'That's a very closely held little thing that (Scott) and his wife and editor got together. I don't know how you'd classify what the members actually join here."

In a variety of publications which print information they gather from oompanies or groups, , including Dun & Bradstreet and the Encyclopedia of Associations, BASS Inc. 's foun­ding date has been given as 1938, a year earlier than the actual date of incorwration.

"Wh~ is the only person that the date of moorporation is real critical f.c?? It's Ray Scott, who sold it," Geor· gIa State's Gregory said. Lfheincor. porated this I?ovate corporation, ~e, a year earlier, before this associ­anon ever started, he'd have a much better theory of showing that the magazine belonged to his private cor-poration ." .

Asked for a response to the legal experts' beliefs that he did not own Bassmaster, Scott said. '1 don't have one. 'That's the first I ever heard of it ....

""The thought never even oc­arrred to 1llC," he said. "If they have a claim, of oourse, I guess somebody oould go (through) the legal channels and pursue it . " .

Investors ' Two life members of BAss from

Kansas, Bradley MtnTaY and Larry Nett have filed a class-action lawsuit against Scott, BASS Inc . and those Scott to whom sold the oorporation.

The suit alleges that BASS Inc., Scott and the new owners "have been and currently are engaged in a scheme to defraud the members of the Bass Anglers Sportsman Society of their SUbstantial property rights.-

"Scott repeatedly represented the Society's primary pUI1JOSe to be con­servation of our nation's streams, lakes, rivers and other public water· ways," the lawsuit, filed in U.S. [)is.. trid Court in W1Chitl, Kan ., says.

~ At no time ... ," the lawsuit al­leges, ~did .Scott publicly reveal that the Bass Anglers Sportsman Society,

. an unincorporated association, was formed for Scotfs personal and pri­vate financial eruichment and prof.. it. . . .

, "Plaintiffs allege that defendants are guilty of fraud. breach of fiducia­ry duties and oonversion (taking funds intended for someone else as your own)." the suit says.

U asks the rourt to ortler a full -a.croUIi~ of BASS Inc. 's i:'evenues smce the time of the inoorporation . '"They have caused damage to (the mern~) ~an amo~t excecling $7S millio.n. the lawsuit says .

An. article in the June 5, 1!m, isSue of Time magazine reported that Bassmaste:r's advertising revenues were about $12 million for 1988, and that BASS Inc., as a whole, had reve­nues of about n> million that year.

James Kobak, a Connecticut­~ ~industry analyst, projected ill October 1991 that BASS Inc. 's annual profits milk! be as m~ as $S million a year. Kobak said 8asSrnastRr acrounts for about 75 percent of 8 ASS Inc. 's revenues.

TIle lawsuit asks the oourt to turn o:,er ownership of &ssmnster maga­zme to the members of BASS and asks that Scott and the current'own­ers be forced to tum over all money they've made from the organization over the years . An election would be held to select new leaders ,

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The lawsuit also asks for punitive damages from Scott and BASS Inc.

As of last week, neither Soott nor BASS Inc. had filed a response to the suit. They. have until March 30 to respond.

In the first issue of Bassmaster, Scott encouraged bass fishermen 'i'o be an 'investor in the fulfillmalt of all the goals of the Bass Angler's Sportsman Society ~ "

In the nearly two and a half de­cades since, BASS's membership rolls have swollen to more than 5OO,rol. Cotmted among its famous

.. members is President George Bush, who has told reporters that Bassmas­ter is his favorite magazine.

But members don't just include the high and mighty, though law­yers, bankers and business execu­tives are among them. BASS patch­es are prominently .. displayed on windshields and · bumpers through­out the South. New EngJ,and, the Midwest and-the West.

Acmrding to a BASS sunrey pub­lished in the magazine, the average member · during the '00> was a 36-

. year-old, college-educated male who earned $28.ax> a year, spent $350 a

. year on fishing gear, fished :rI . 2 days a year and spent $15 a year to join the oociety - $10 of which is for a Bassmaster subscription ~

After 24 years of Scott's bass-fish­ing evangelism, BASS is well known for the nearly $3 million bass tourna­mEnt trail and a weekly . cable TV. program, 1be Bassmasters." And Bassmaster, still published 10 times a year, circulates to .542.Z79 . people, with 21,539 of those in Georgia.

'1'he average guy out there is wanting to lmow one thing: 'How in the hell can I catch a bass?' All the · rest is lip service and will leave his lips as soon as you leave his sight," Scott said. .

Members keep casting their lines and dollars,. and Scott continu.es to . preach the cause.

EXHIBIT 9

EXHIBIT 9 ATTACHMENT TO:

SELF-EXECUTING AFFIDA VlT OF . . .

PAUL BENTON WEEKS m [28 U.S.C. § 1746]

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THE WALL STREET JOURNAL. ~ 1995 ~ Jonn & CDnrpmry. [,,'- tlU Ritlus R=nxd

., * * * EA.ST1ltN EDmON

i WEDNESDAY, DECEMBER 13. 1995

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Is There Something Fishy atBASSInc. ? For-Profit Clu b Lures Anglers by Appearing . Nonprofit. Critics Say

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I RASS I pIIlches. I ret II lump righl In my Wanel." ..

But roc- .decades. BASS's lop O(flclals move to create an atmospll«e lite thosI! rOlllld at ~roO~, In 1911.lor eumplt, on \he IbIrd al\lliversary 01 BASS','ound­In" Mr, ScaU wroIt In \he IOCic'Cy'1 Rass· mut« maru!nt~·"~ • co~I'V1IUon'

.. By Gu:c JAnE nshlnc rroup we have acc""",11shc.d much . .• ~ Aqon.-r.,Two: w ....... ano".". .IoU""AL ·In alhon per1od.~ In thf Ilory, Mr. Scali .

Ute. the Nanri CouselYllley, the 8&ss Wtnl on 10 complaIn lhal 'IM' Sock-Iy', AncIen Sportsman .SocIety Inc. bas be- 1u1I~ eade&wrs In \he aitUpolluUon

. , corne a respected volu In \he nthl lor ItnIRIe and the BASS FIshInc ~mlnar .:.::: ! deanet' ... ~r.lJketheU.S.TeMIsA.ssod. procnrns reduce \he amounl oC time 10

.· ... ::: .. :··.:·:.: .... :: ~I' IltlOn, BASS Iponson blth'proflle \Duma. man.,e and host bass · fIsIIin, lourna· ments lround \he COW\IIy. Uke the KIWI' menb;." Nowttere Is there a mention that Dis Oub,lts memben leell boiu1. ,. ',; \he IOdeCy Is Ilor-prontcompany. .. .

. j. "Amu1can.s are·the ..... Iest Jolnea In Sven now, Helen Sn:kr, BASS', cur-I .' - rent diId executive, &ctl1ow1ed(es· thaI 1 \he 'KWIc!." 18)'5 BASS louuder Ray SCott. . members lee "sodety" memberstI1p as

I "U \hey don't haYe somethlnc to join, lantanlOllllt to JoIn\ric the SmIthsoDian~ · ~::J! sometbInc to join'. "'I1IaI'~ . . "We wae awtetln&' I · _ of belon,·

i How, lOIIIe _mbe" are woOdertn, Inr," 1M.18JS.

I' wb4t It II they joined. . . Settla(0at .

. TO the public, BASS, with ~,OOO "aod~ . Ray Scott cutaInly bad \he 18VV)' and ety lIIemben. " .. the MUon'1 brrelt nih- . cIw1m!a to mu1I:e\ ilia! _ 01 brodler-

i inr dub, publliher of "'hlnr mall'Ulnu IIood. He Ht oul In \he bulllIeSI worid 1\ and host of the BASS Mu~rI C1U1lc, an Ire It u an llllurance Kleaman, plylnr: 1.I\l1ua1 Ihree-day event bOled as the Worid bII trade III Pbeatx Ctty, AIa.,In the eariy

, Series oC fIIblnf. EarlIer thlJ month, Field · liSOs. He aoId bur1allnsUr&nce, paid 011 In

I "Strum marulne I'n'mled BASS', e(. dau·&ctIon IaWllllt III fedeni cOurt 1nWJ:' ·income and Increaslnrty are fl!t&r Into· 2kent-aoftelc lnat&Umenu,lo A1abaml'l fOC'U to PfOIIIOte and protect bus IIshlllf . chlta, Kan .. aRqlnrthatllASS.Inc.dIqie'd pront~QaratInJopentlOlll, "I8)'1.JtmeI poomt l'e$1d~ts. IUs YOW tocustomen: by IWI\lnf Mr. Scott one 01 the 20 blue'lt nshermen by dII"tuIIlnr the Oft'II~Uon • FIIhman, I proCessor It Pice Unmrslty .Our mves"are I foot deeper Ind a nickel lnfluen~ oa outdoor. lpOrU In this cen· as a nonprollt cotllenltlon·lllhlnr lOcI- School at Law In Whlle P1a1t11, N.Y" who cheaper." H1a ,aiel teclInIque olIen In·

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' tury_&II bcmor be IbuH WIth Teddy Roo" . eCy, · .. ".. .,' ,. " ":-:-, .. ~".' . . _'., .1tUdIu ·lIOI1Prollt ~. ':!t., be- .-olved leDlar, In Mr;. Sco\t'.-c,.,.n words. leYelt &lid environmentalllt'luthor Rachel'.'rh1I II I '\aiTe;' loIirtbiIe -'masIIve come very bard It times to cIn w I ciear'~~·: '/takIs that weml't abl.ol\lldJ true. .. · Canon. . . . fraud," Stye G. Robert Blakey, . I Notre . Unelletween\hetwo..". . ' UwullllK7thatMr,&cottbcdwhathe

Indeed, lOr neaily" thi:ee deCides, BASS Dame law professor and'autbor of the led· . . The lltuatloa with BASs Iw la unUl1iaI ruen to In limO(( rel1(lous tmns as I vi· · 'I'! Inc. /w thitfed In part oCC an tmafl! that.. enl'R&ckelcerlDfluenced andCortuptOr-. tWuc.18)'S Mr. Flsbman: U II llor-prolit IloII.Ly1nrOlllhotdbedInJacboIl,Mlss ..

It least -puttall)' nonprofit and envtron~ pnlllllonllaw who .. I colllll1lant In the ~tIon lllat often Ippelrl to be I lIOn' ~ IlIslllldenrear, 14r, Scott 18)'1, be bll on mentally consdous: But despite II! dub'-' case. "These people bou&tt Into what \hey 'proOl' . lUte Idd lorlcompeUtI~ blU-flsbInr tour-

· . .... i. Ute IIIn. BASS Is • prtVl~ bud ness with . tho~t was I lOdety (or bf.sI en'f1ron- BASS Is ladllf the lawsuit al a time jnament. For a Sl00 eIItry ret, contestants

.: .... J. IMuaI reYtnUt 01 $SO !DUHon to S60mll· mentalJrts."· .•. . .. when eq>nomIc re::ru1~rI !rom 10 dtles In . ;would earn the r1(IIt to compete lor I 15,000

1IoiI. that Ipel1ds some IU llUWon, or That'snot \0 l8y u.e-.c:OUipi,ny ~n't the SouthUd and Ftorlda are danCllllf In-. ,(T'IIId prize &lid I trip iii Acapuko. For-,. rouiI1Jy", of reYeaue, on nonprolll con:. provide beDedl to· membm, . inaIIy of . eentlves to lure the eompaQy" new bead- . tI!ne cIa)'s, lie ICr&CdIed out the rules on I

lemtion act1Ylt1es, adiulnlJtet'lnr'locaI whom dearly I'tlish their part In the bl( quuten compI~_1 I\~ that would JQ- yellowleplpad&Rd\henhIUbeS1reets. flshlnc' dubs and cblldl'tn's procnms. !!shIn, dub •. Morwm-•. 'Mr;&oott Yeh~ dlldedSO million theme park. outlet aWl.: He ItIr1ed with the n.ames o(four Ilsh-And, eYen thoocflllle arranlllUon cays II menUy denlel Illal the company d=lved Ind aquarium. IU dedicated.to the out-- . In( bWdles WTltten on lour Indu cards. ~ been sucuSstuI In populartzlnt the Inyone. He says he bas made It DO secrel II-. and the basE. . .. '. - . Throuth ~ 0( !IIOOth be built on thaI

_sport 01 bUs ftlihlnc ind proted1nr bass thnl helw made plenty 01· money !rom In_n tn·Ws wan· t" \. , ~.;. ~ .. \ 'i:;:.' ;.' ;' list, l=ulaUnrlboutSOOJllllles. "Alter habItats, only lbout U .mlUlon olthatSl.T BASS, Ind lie Isunapoloretlc. • ......... e . ' . ~:.'.: .: .. _~ (, .' .. ' .~ tIrst (our Dames, I wt'O<e their mmlon roes to environmental Issues. "Mate no'mlstake &bout It: I went Into Mr. Scott, who sold BASS Inc.·.to·J~ fl1ends," Ays Mr. Scou. '11tTOte them I BASS orndals aay. (Owner Je"'lson.... Illls 'fO'I1ll one Idea, and that i ... s to make . .son In 1936 but I'tmalns cbaJnn&II mien- .- ' letter,l8y1nf, 'Your ~ It1end Is partld·

,.i YeStmeDt OJ.; 01 Blnn\n(tlani, deem't dIs. money ••• ," I&YS Mr. Scott, a p~ . 1Iri, says he lIeYer InteDded lor \he Ioclety " , palin&' In the JJ1 American Bus Touma· . lose n) . man with a penchanl lor III1Ctr-s!ze bell 10 be anythln,odIer than 1 bus1ntas.The :'. mentlndlleburecommendtdyou lobe In

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Worlds buckles. "My mot1ns were alnys merce- . 'namboyant 62·7tar-old founder put lip bII,'; our ClImpeUt1on, dafmln, that you a~ ao aary." .. own money \0 liar! BASS, pald taxes OIl the .. Ivtd basdlsberman and renUeman of hlcfl

; : BASS', maddlr,;, 01 llle'lor-prorllIJId ExPerts say BASS tnc. Is an example 01 eompany from \he be(InnlllC aDd routfuely 1 ' stancs.rds.." ):::1 IIOIIpro(1t worlds has created ,mal could be · the IncreastnctY' blurry line between ·'or- boasted lbout praC11S. Indeed. In I quote , . JoIo~ than 100 flSbenMlI turned up lor · . ,.: j I sI(nltlClllt .\.breat to Its Ofi8Dl%atloo. At· prolll and nonprotIt entities. "These da)'i, . from a 00 Audubon \IIIfIIIl1e article, Mi. ,the tooruameot. AiId '&I\bourh Mr. Soat1

· , .. ::' 1 tome)'1lortwoBASS ~bers have rued I 1I0nproats are IootIntCOI'Wlyeto reuerate SOJtt aaJd, ''Erny time I lee one of ~ I· . ..~ nail /0 I'IIOC st, CblIOll" 1

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54 THE WALL STREET JOURNAL. SOtITHEAST·JOURNAL WEDNESDAY. DECEMBER 13. 1995

SOUTHEAST JOURNAL

BASS Inc. Creates False Impr:~ssion, Critics Say uys he ba~tybrOke even. he sensed anop­portunlty 10 crute a soclety dedicated 10 the pumllt or a 'Ine1e sJ~de, of Rah. thc btnck bll.SS. "There WAS I hut out therr blrter than eYen Ith<X/lfll," he SlYS. '

So. Mr. Scott quit his Insuran~ job and ~nted a Uny olllce In t.!ontCUmuy, AJL., a.cros.s the street h-om a shop that made tom\mones. With the help of a friend. Mr. Scotll4ld out the Orst luue of ~r mag-wne and out1lned the 10 roundlnr COOls ol the soclety-nve of which related to conRrYlIlion and the envlronmtnl. No EnvtroDmeDtallst

Today In an IntttYiew, Mr, Scott says he Is no environmentalist, nolInr that he "desptus the word" ror Its antibusiness connotations. But he says he knnr the ru-

,, ', lure or his dub depended on presemnr bass habitats. He also knew thai conserva· Uon was somethlnr that Interested his tel· law nshermen and woold spur them 10 Join BASS. ''TlIerr,wun't one In 100 !bas, nsh· ermen! Interested In cany\ne I Iprot.estJ placud In Iront or a nasty pollutu. h rays Mr. Scott. "But they would 1fTft. that It was a rood Idea. "

Mr. Scott beran ulllnr BASS member. Ihlpa. In uchanre tor thdr membership dUe1l- SlO a yur In the early days. 12O I year now-Mr. Srou promised floh=en a patch wtth the BASS \orO. They' a!ao ~ ttlved a lubao1pUon to BusmLSter map.· dne. which rtlled on runbUnr 'maDu­Knpu IwIdWT1tten Ind Rnt In almoct U· '

clUllvely by memben~ BASS memben a1ao eamed,the r1JfIt to

Id up OT Join local dubs that wert &dm!n. IIlered oul of !be central BASS ofn~, BASS ,dub memben could par1Jdpalt In' BASS tournamenll held 'around Ule country. AI those tournamentr, )dr. Scoct, armed wtth a bullhorn and I tlArter'1 plato!. rmceed wtth the ual 01. a Baptist preacher. "He COIIId !'tally rlte'up the mwes ror 1OIlle­thlnr they had a tanatlcal Inttrett 10," ~ members Steve Uthtloot, III outdoon; writer Ind lpokuman ror th~ Texu Pub and Wlldllte ~pal'1menL

", But It wasn't the tournaments that 'tamed BASS national attentlon.,lt wa:. Mr. Scott', e&Ils lor' cleaner I.a.ke$IlId rtre&.mi, which tortultously coincided with In emeJ'i1.nc national Interest In U1e eDl'1ron· menL On a slncle day In 1970.1I1th the help 01 Montr-omery d11!·rirhts l"''Yer MotT1s Otts, BASS rued more than 200 llIt1poUu-lion Ia wsuUs. , ' ,

The lulu, which tarreted rompanles acros.s the naUon ..... ere LS much theatr1·

'cal u a.nylhlnr else" and were all dis· ml.s:sed. IIYS Mr. Scott. StJIt. Ule stunt landed Mr. Scott an appearance on NBC's "Today" show. BASS rot a bir boost, dri· vtnr the SOCIety's membershlp rolls over 100,000 by the early 1970s. .

BASS tlshennen responded 10 the call 'ror cleaner wattrs by sendlnc checks to the Montromery headquarters. In some c~es

the dleeks were sent to BAss lor Its dean· water drive . In others. Oshennen sent in membership dues tliat they ~med 10 think were used 10 tund BASS's fOOd worts. "I hIIYe"hnltated llonr tI __ bM Jolntne BASS. No Jonre~" wrote BASS member Jim Rutherford In ' the Jlnuuy/February 1J11 ~ 01 Bassmn· Iu. hFor with alms like those at the Bus An(krs Sportsman SocIety, no S)JQl1l1lWl an alford not to join and do his bit Ihrourh dues to help make a duner America . , .• ' Here's my ten bUCks." Good·Works Promollon

As Mr. Scott tOllrtd the rountry to pro­,mote the orpnlutton IJId oversee rlShlnr contests. he conUnued to public\%e BASS's

, ~nvlronmenUl wort. In Wichita In I9n, he

. ~~' ,'" , .. ~. :.: •. « ," .. ,.J". ," ~ ,. "r- ';"' I- ..

r1~~~~~~~!~~; ~ foaOcitcl: t~8.Inco~d 1969 :. ;' MIAtoa; PubrlShes six IN(J3lines and a : ~ IIlmsion show. Runs proresslollll ~ fisIIlng lOurrwnents. ' ~ 11I1a; for."nmt ,:,: ' i; AMU! RfTtnac; Estlinmd 150 mllAoQ

10$60 mlUlon " '. ,,,,,. " '

" ' FovadH: 1068 . ~ ,~ Mmlaa: ,To oroinlzi iia:ss (lshdnm"

IntO • R31IoIW 1UOdaIIon. pr'omot. bul tIshIng Ind prQ\Ict bass lubltm.

aul1l,: BASS IraItIIIM lederadon U I no!·lorl'rofH operation owntd by

romery ~'maIl firm. 10 belp maI1c~t hIs nMellne orpniuUon. .

The early man 5OIkitatlons she 1VT'Ote tor BASS stres.~ the dUbby a~turr 01 tht Jport. One or the musl .u~rulaw;. wnt· ien by Ms. Sev~r, says ; "NOI. every fISher­man wurs Ulls patch. DIn yoo! JoIn the world', Ial"(ffi ruhlnc OIPJIlution to­day." The ad. stili used loday, sells "a sense ol pride that they art pUt ,ol an or' ranlutlon Ulat Is bonded totnMT, not un· llU the Smithsonian." she says.

Growtnc Rolls As BASS membership roUs (l'tw. Its

tournaments. thaDIes to Mr. Sro!t's tireless promotion, also were crowine In stature. Mr. Scott nell'- outdoors Writers lrom around Ule country to the BASS Masters Oassic. By Ult mid·70s. the tournaments were startinr to draw rnalex: sponsorships lrom fishing- and boat compani~ .

But In the late 19TOs, wmt tany BASS members seemed to be (fOWine disap­pointed by BASS's increaslnc locus on Its tournamenU'lt the expense 01 the environ· mental wort Ulat played such In imPortant role In Its e&ny days. Are tournaments "what BASS Is all about?" wrote BASS

" member Jim O'Qmnor In a !lin ts.ue 0( , , Bassmaster. '~I know trom readlnc tM

lOUIId1nC coals or the Bass Anclers Sports. man SocIety and the BASS (local c1ubsl •. • that this Isn'l Ule InIe 1"011. 'nirn the q>oI.

, Urnl on youth I!shlnc'prorranu or environ· mental proJtdI."

StUl, BASS'I membe.nhlp conUnued 10 JTI'W. hlttlnr M,ooo In IV8Q. ProItulonal JlI~rinen became cdebr1~ And Bus· BASS Inc. " '

Amlall Jp.adliG= 1f.S inttUon

foandtd; 1970 , ,_, '

: muter mapzJne ~ III lmportant ad vehlde tor boat and l!sb\of CXlIIIpaIlies. In 19M, Adweet lIII~e rated Banmaster DOe of the 10 hottest publla:llons In' the coontry, bued on Increuu In advertlslnr

MIAlaa; To proWct lilt tmironmcnt. .' IlItIIt: , 501(c)!3) noriprofH lounded by

BASS oIIIcbb ' I " , ,

Annlll IptadlllG; AVlraoe m,ooo over P¥t 1M )'Wl

" < ~.pr~

placed an ad~rtl$em(\\11n the toeal paper ask1nc people to rive S2 al ,the cioor of a BA.SS-spons«ed /!shInr demonstn Uoa. to ' ' help "BASS CODtlnue the ,PoUuUon Plcht toraun Water."'tbe ad nc-ver mentlooed BASS'I tor-prollt Jlatus •• , And BASS did Indeed make the Wlln"s

better. Its policy oll'tleaslnc fuh once they werf caurht. known IS "cltch ond ~ tellie," helped lin the bass species Iran overfuhlnc. )lembers ol the local BASS dubs. whose activities olten werr coordi· nated out 01 the Monl{omery oltice, took to ana lakes plcklnr up (II1>a.g-eand lobby· inr local r-onrnment tor environmental laws.

'By this time.. wlUl membership buildinr rapidly, Mr. Srott had tapped Ms. Sevier, who was selllnc rootbooks ror a )loDI'

parel and I't'ftnue. , But,as BASS expande4, tbere _med to

be InCrt&SlDC c:onIusIoo, mil ,"thin the mety. about whlcb partJ of BASS were lor-prolll and liblch we~ nonpro!1t open. tlons.

In 1988, when the company ber1n BASS TImes. It sent !be weddy ,nenpapc:r out 10 BASS Federation club members at a mall· fn$ rate resened for publlattOllS prodUttd by'1lOllprollt tIrms. 'Four )'Un later, the publication, which updates members on toW-namenl Ind COIlIerntloll n~ws-, nrttched 10 a ror-protll JnaIIllI( labeL At ftll ~es \be publlc.atJOn was owned by lor· proOt BASS Inc., IIYS Xan Dabbs. BASS 1nc:s Yice prtSldent ol fInInce.

Mr. Dabln says the Mtch was made because the newspaper otipn.ally served pr1marily as a nC'WSletter tor the BASS clubs-retarded as not·tor-proOt-but later became I proOtablc'pubUcat1on. "We continued to !send It at 'nonpronl postal rates I unlil "'e realized It may not be the rtrht thinClodo." says Mr, Dabbs. Technl· cally, he says, the neW1p8per should hne ,been published by BASS's nonprofit tund,

Anriers ror Clean Water. Then. it BASS Inc. >nnted to con~T11t to a profit·matln!: enterprise; It should have purchased the pllhlicatlnn lrom,thr nUllpmOt mUll'. Mr. [)Ilbbs now Jays.

Secrel to SUCttSS In a 1991 Intuvltw wIth StlCCt'U map·

%lne. Ms. Sevltr explained the Reret 01 BASS Inc. 's fT'O'I1/I by Ayin,C, -We're ' l pronl-mlklng- orpnilllUon. IMlt ~It loot OD us a.s a nonprollHYP<' OCl.nw.· tlon." Sh~ now says sh~ meant that • .... e do th~ Same t~ 01 rood w-orts L< lhf Sierra Club. but under a torl'rofit umbrtUa.-

That umbreUa appears to be a bit opaque to members. Larry G. Williams, a mem~r lrom Monroe Falls. W.VL, rom· pares BASS with such nonprofits IS tht No· tional ' RIOe Association and Vet.",ns 01 Fnrticn Wars. "BA..<;S Is not Just In It rOf" tbe money." he SOj'S. Adds mcmberLonnie Simmonds 01 McCoot. Neb .. "1 didn' t re­ally knoIA' It was (lor-prolitl. 1 thoUrbt It .. as the ,",me LS the NRA."

The contusion has propelled BASS Into the middle 01 Ule dLSs'a(tion suit. Filed In lederal district court In W1ch1t3 in 1992 Ind translerred to 1"&1111 dlStriCl COlIn in Monl(Omery unler 'this ye~r, the lult contends that Mr. Scott acted lItecally when he Incorporated the society In 1969 and awarded hlmseU 99'k o( the stock. It s<d3 to rrtUrn ' to the socIel)' ail proOts and a.suts that Mr. Scott . Ms. Sevier and Jemlaon Investment earned lrom the en· terpnle. The money, nUm.ted by the plalntUls' I .. wye", to be over ns mWlon. w-ould be ,wed 10 luJnllthe orielnal COllur­nUon and rtshlnr-promotJon I"OIIs cit the society, laYS Rlndall Flsher, the pllIn·

,tlrt~' attorney, who IIYS that Utt/e 01 BASS', revenue went toward envlronmen· til ca1L5CS.

Lawye", ror BASS. Mr.' Scott. Ks. Se­vier and Jemlson say that the natute ot Ilmltattons h4s explied an Iny aUered [raud. which they nhemenUy deny.

The lUI! appears to be doing Utile to 'low BASS down. Mr. Srott prt51ded In Au' rust over this yeu', BASS Misters Clas· lic. Tbe avwd of %3.000 traftled III aft!'­are fO() mJle:s to attend the G=nsboro, N.C., event.

The day belore the crowds COftTtired therf ror the nnal welrh·ln. U.S. Interior Secrtlary Brott Babbitt and some 50 rep­rrsentaUve:s from the naUon's most influ­ential environmental croups huddled a.roond a' conlerence table to dl"",ss how to mm protectJon or the country's natunl Rsourtts an Issue In the 19% ~Itclion. RWU1lnr the m«tlne was Bruce Shupp. ronservation director 1« BASS Inc.. the only t<X'1lroOt corporation In attendance. , lU-caHinc his croup's rood w-orts. he or· Ie'" Inslcht Into BASS's $tyl~. "Som~

, times." he says, "I h2ve a dllllcult lime re­membering we'rr a (tor·profit! corpon' tion."

EXHIBIT ·10

EXHIBIT 10 ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U .S.C.§ 1746]

V lrglrua fj.A.0 .0.: lilt: v u ~uua D.l'""L0.0. l' CUCI ClllVU .. ~u '-'1l~

~ Angler Profile

..- Sponsor Profile

Y Featured Column

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What's New· 12/1512001

Welcome to the Virginia B.A.S.S. Federation Web Site

The Virginia BAS.S. Federation strives to presefVe and promote the sport of bass fishing.

Federation activities include the introduction of sport fIShing to young people and the conservation of water c natural resources. The 2,400 Virginia members support and cooperate with fishery management agencies a educational institutions to develop and protect quality fisheries.

The state Federation and its nine regional divisions also organize and conduct competitive fishing events. TI Federation was established in 1972 and has a proud history of accomplishments with youth, conservation al community service. Please see the Federation Link for more information, including how to join .

Site Designed & Maintained by Peter R. Herbsl Copyright 2001 P~er R Herost All Rights Reserved Credits & Disclaimer

12/28/2001

t'age 1 ot 11

Federation <back

Constitution and By-Laws

ARTICLE 1. NAMES, ADDRESSES AND MEETING LOCATION

1.1 NAMES

1.1-1 NAMES

The Virginia BAS.S. Chapter Federation, Inc., herein known as Ihe Federation, also known as the Virginia BAS.S. Federation, the Virginia BAS.S. Chapter Federation, or any of several variations of the offICial corporate name which includes the term BAS.S. or BASS, the symbol of the Bass Angler's Sportsman's Society of .America, Inc.

1.2 ADDRESS

1.2-1 PRINCIPAL ADDRESS.

The p'rincipal address of the Federation shall be. the residence of the President, or other address as he may select with the Board concurring.

1.2-2 OmER ADDRESS

Elected members of the Board, Committee Chairpersons, and olherofficials appointed by the President, may, as approved by the President, establish other addresses necessary for the timely and efficient discharge of their duties.

1.3 MEETING LOCATlON

1.3-1 BUSINESS MEETING LOCATION.

The business meetings of the Board shall be convened at a site selected by the President with the Board cooaming. All Committee and other official meetings shall be held at sites selected by the·chairperson or other presiding officials.

1.3-2 GENERAL MEMBERSHIP MEETING LOCATION.

An annual meeting, open to chapter presidents and the general membership, shall be held at a site selected by the President, which is suitable and convenient for attendance, by a large number of rnerrbers.

ARTlCLE 2. PURPOSE AND GOALS

2.1 PURPOSE

2.1-1 PURPOSES OF mE FEDERATION.

The Federation is established to preserve and promote the sport of angling for largemouth bass (Micropterus Salmoides), smallmouth bass (Micropterus Dolomieu), and spotted or Kentucky bass (Micropterus Punctulatus), herein known as bass; to introduce youth to the sport of fishing; to COnsefVe water and other associated natural resouroes; towor1<. for an abundant, healthy and self-sustaining bass fishery where a natural potential exists; and to support the local, state and national agencies which conserve and manage the fresh water sport fishery and

otherassociatl-ed __ re_s_o_u_rce __ s_. ________________ ~~----------------------------------__ ------------------------~--~~ 2.2 GOALS L::.

2.2-1 GOALS OF THE FEDERATION

The Federation, shall, in its opecations, pursue the goals of organizing and conducting competitive fishing events which adequately provide for the needs of the bass and the angier. to establish live release of bass to their habitat as an integral part of sport fishing; promote realistic conservation of natural resources and causing adoption and enforcement of adequate water quality standards; of educating the membership in

http://www.vabass.com/federationlby laws.hlm 12/28/2001

citizen involvement in the processes of government; of supporting and cooperation with fishery management agencies and educational institutions in development of good fisheries for the future; of encouraging youth involvement in sport fishery and leading the chapters in organizing and conducting youth participation activities;· of promoting public awareness of the Federation's purposes, goals and activities; of timely and efficient communications with the membership through a regularly published newsletter: of gaining new members and chapters to BAS.S. and the Federation; to generate revenues sufficient to conduct the programs of the Federation; of reducing the hazards of boat operation and sport fishing; of supporting the non-profit purposes and goals of B.AS.S. ; and other such goals as may be established for the chapters and the committees of the Fegeration. .

ARnCLE 3. AFFILIATIONS, COOPERATIVE AGREEMENTS AND FACTS

3.1 AFFILlAnONS

3.1-1BAS.S. AFFILIATIONS

The Federation shall preserve and maintain in good standing its affiliation with the Bass Angler's Sportsman Society of America, Inc., herein known as In the State of Alabama with it's principle office in

3.1-2 VIRGINIA REPRESENTATIVE OF BAS.S. CHAPTERS.

The Federation shall operate as the sole representative organization, other than BAS.S., of the various chapters, associations, clubs and other organizations established in the Commonwealth of Virginia and duly chartered by BAS.S.

3.1-3 OTHER AFFILIATIONS

Affiliations with organizations othel" than BAS.S. may be initiated by the Federation to advance the purposes and goats of the Federation and \he best interests of its members. Such affiliations shall not be maintained in conllict with the non-profil purposes and goals of BAS.S. A written statement of conflict from BAS.S. shall be sufficient cause for dissolution of all such affiliations.

3.2 COOPERATIVE AGREEMENTS AND FACTS

3.2-1 AGREEMENTS, ETC. WITH ORGANIZATIONS OTHER THAN BAS.S.

Cooperative agreements, mutual aid pacts and other special agreements and joint operations may be initiated or agreed upon by the Federation to adVance the purposes and goals of the Federation, the non-profit rposes and goals of B.AS.S. A written statement of conflict from BA.S.S: shall be sufficient cause for dissolution of all such agreements .

. ARTICLE 4. ORGANIZATION AND ADMINISTRATION

4.1 CONSTITUENCY

4.1-1 CONSmUENCY

The cons liluency of the Federation shall indude the citiz:ens of Virginia chapters who are members of B AS.S. The interests of the constituent members shall, within the purposes and goals of the Federation, be fully represented by the Federation and its officials. BAS.S. membership shall not alone constitute eligibility to hold elected or appointed offioe in the Federation.

4.1-2 MEMBERS

The members of the Federation are the members in good standing of any of the approved chapters of the Federation. In good standing shall mean that the member satisfies all of the requirements for membership imposed by B.AS.S., the Federation and the member's chapter. Members in good standing only shan be eligible to hold offioe in the Federation. E/igibilrty for offioe shall also be conditional upon satisfaction of an the requirements and quarrfications ifll>05ed in the ConstiMion and By-laws.

4.1-3 CHAPTERS

The chapters of the Federation shall include all of the chapters, dubs, associations and other organizations in the Commonwealth of Virginia which have been duly chartered byBAS.S. and which satisfies alt of the requirements for chapters imposed by BAS.S. and the Federation.

4.2 REGIONS

4.2-1 REGIONS ESTABLISHED

The area of the Commonwealth of Virginia shall be subdivided into regions suitable for efficient administration of the Federation. The Board, in

http://www.vabass.comlfederationlbylaws.htm 12/28/2JlD 1

EXHIBIT 11

EXHIBIT 11 ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746]

Bass Boss THE INSPIRING STORY OF

RAy SCOTT AND THE SPORT

. FISHING INDUSTRY HE CREATED

ROBERT H. BOYLE

Whitetail Trail Press . Pintlala, Alabama

... ........ - - .•. >--.•• .••• ~-., .-, ....

202 CHAPTERl7

and access programs. With passage of the amendments, Wallop-Breaux

monies increased from $35 million annually to $102 million annually.

The expansion program was the biggesr boon ever for anglers and has

allowed states to better protect and improve their fisheries.

Ray helped draft the legislation and took on the task of pushing the

amendments on behalf of B.A.S.S. and fishermen everywhere. He was

confident the task could be accomplished in a couple of visits to

Washington - he wasn't called silver-tongued for nothing.

He was wrong and the experience has made him leery of red tape and

bureaucrats to this day. "It took seven years," he says disbelievingly. «For

seven years, I would fly up to WashingtOn regularly, frequently with our

Federation Director Bob Barker. He had the patience oOob, thank God.

We also worked with a wonderful man named Carl Sullivan who was

head of the American Fisheries Sociecy. Sometimes he'd sleep in our

hotel room on the sofa instead of making a late commute to the suburbs.

1'd be' cussing out every polite, pass-the-buck bureaucrat 1'd talked to

that day. Carl really helped me hang in there. Finally, things began to

turn around when I had a friend in Vice President George Bush.

'Til never know for sure wharhappened. Doors were slammed in my

face again and again. For three weeks I tried to see Congressman John

Breaux, of Louisiana, chairman orthe House Subcommittee handling

the legislation. r couldn't even make it through the secretary. It was a

classic stonewall." Ray would later find oUt that the National Marine

Manufacturers Association (NMMA), which he promptly dubbed «en_

ema," was lobbying to block the legislation, fearful of additional taXes on

marine products.

Out of frustration and in a last-ditch effort, Ray called his buddy

George Bush and explained his dilemma. "Bush just said, 'Let me see

what I can do.' The next day I called Congressman's Breaux's office and

the secretary said, 'Oh, Mr. Score, when can you come by?' r immediately

wenr to the congressman's office and was cordially greeted. Over a cup of

coffee in his private office, r starred to explain the benefits of the

proposed legislation, which was then called Dingell-Johnson, and Breaux

said, '[ know all about iL' r asked, -'how do you know?' Breaux said,

i · 1

FULL THROTTLE 203

'Because I was called Out of a committee meeting yesterday by Vice

President Bush. He told me all about the legislation . What can I do to

help?' From then on it was downhill toward passage. President Reagan

signed the legislation into law in 1984. Every fisherman in the country

owes a debt of gratitude to George Bush. This is juSt one of hundreds of

similar actions by George Bush that no one will ever know about."

RAY DOES NOT consider himself an internationalist but he did get

into another interesting bass battle in the 1970s. And although it's hard

to imagine that bass fishing could become an international political issue,

it did after Ray came face to face with the grim realities of Soviet

communism. Oddly enough, however, the actual battleground was an

ocean away from Russia, in Cuba, a historical fishing mecca.

Cuba has long had the reputation of having the biggest largemouths

on the planet, humongous fish that would top - even dwarf - the

world record twenty-two pound, four ounce fish caught in 1932 by

George Perry in Montgomery Lake, Georgia. Bass are not native to the

balmy, tropical island, but were first brought from Florida in 1915 and

then again in the 1930s, the latter time by the Texans who owned the

King Ranch and had extensive landholdings in Cuba.

In 1959, after Fidel Castro took power, the Eisenhower administra­

tion imposed travel restrictions to Cuba but that didn 't stop fishermen,

among them Ray Scott, from dreaming about fishing there. In the early

1970s, Ray, Bob Cobb, Harold Sharp, Dave Newton, and biologist Sam

Spencer got permission from the State Department to go to Cuba. Ray

was eager to find and to identify the sub-species of bass in Treasure Lake

- were they truly the Florida largemouth, Micropterus salmoides floridanus?

And he had written to Cuba's National Institute of SportS about the

possibility of breaking the world record. The Cuban government not

only failed to give its okay, it never even bothered to answer.

In 1977, the Carter administration eased the travel restrictions, and

Ray got a call from Dan Snow, who had been director of the shon-lived

B.A.S.S. tour enterprise in 1974-75 and who had since opened his own

Latin American fishing tour b\lsiness based in Houston .. Snow asked his

~ .. ,,:~"-" .. : ..

ABOVE: Bill ·and

Meredith Schroeder

listen to Ray at the Eagles

of Angling Friday night

dinner with an amused

George W . Bush in the

background. Bill sug­

gested building the new

Pintlala Baptist Church

sanctuary.

LEFT: Susan greets

General Brent Scowcroft,

President Bush's friend

and National Security

Advisor, and one of her

iavorite visitors. He

fished as a guest con­

tender in several Eagles

of Angling Tournaments .

"'~" """" •.. -., ., -. ~ ~, ..... ... '.

Ray enjoys sighiseeing with Japanese bass fishing star and tackle shop

entrepreneur Ken Suzuki in Japan in 1995. They were introduced by tackle manufacturer Bobby Dennis .

Texas Governor George W . Bush visits with Ray at the Governor's

Mansion in Austin on the eve of the demonstration of a mechanical

weed harvester at Lake Bastrop in 1998.

20

The White House Connection

I T ISN'T EVERY DAY that a President-elect decides [Q go fishing a

, week before his inauguration, but that's what happened on Decem

' ber 29,1988. Vice President George Bush, already a lifer'nember of

B.A.S.S. for nearly ten years, landed in Air Force Two at Maxwell Air

Force Base in Montgomery to go fishing at the SCOtts.

It didn't surprise ,Ray because he knew Bush was an avid fisherman.

During his years in the White House there were those, especially in the

press, who were skeptical about Bush's professed love of fishing, consid­

ering it part of a public relations effort [Q portray him as an "average guy."

They were wrong then and are still wrong. He is an authentic bass fanatic

and general outdoorsman.

"Actually," says Bush. "['ve bee(1 a fisherman for quite a few years,

starting in Texas near Freeport in the early sixties. Ray's the one who gOt

me interested in B.A.S .S. and I bought a life membership. I liked the

magazine and I liked wh<lt the organization was doing for sound conser­

vation practices and fOf the sport of bass fishing in generaL"

As d malltf o((acr, when Bush was campaigning for the presidency in

1988, he was asked in a New York Times interview about his reading

habits, "Me. Bush, what is your favorite magazine)" Without a blink, he

said, "Bassmas.ter." Ray loved iL

Bush confesses, HI don ' t get ro fish nearly enough. On a scale of one

232

BA TILE FO R BASS WATERS 261

milfoil and they must be managed very carefully. As a matter of fact, I

would never introduce foreign vegetation into any public waters. Bassmaster

used [Q run articles on ' the horrors of hydrilla, until the fish started

disappearing when it was chemically eradicated, and people began to

understand the intricate ecosystems that develop around this vegetation.

"And, it's not hard [Q understand once you stan investigating. Very

simply, this vegetation creates a rich but delicate ecosystem. Everything

feeds on everything else. Poisons can devastate entire ecosystems in a lake

beginning with the smallest micro-organism. It may take years to recover

and in the ineantime there is a crippled food chain [Q suppOrt a fish

population. And that means there is no quality fishing.

"Can you imagine living in a world with no living plant material? No

grass. No plants. No flowers. No trees. No birds or critters of any kind?

When you virtually destroy aquatic vegetation and habitat, that is what

you do [Q a fish's world.

"When you get down to it, aquatic vegetation is as much a natural

resource as our forests. Fishermen say it's habitat for fish. Naturalists say

it's habi tat for waterfowl. Biologists say it's habitat for both game fish and

waterfowl. Environmental·scientists say it's a narur;l.l filtration system for

lakes and rivers and that it's vital to clean waters.

"So how did we get in this predicament? It's simple" says Ray. "It's

spelled M-O-N-E-Y. Chemicals are big business, like the drug industry.

Some of these herbicides cost $1,000 a gallon. And a gallon doesn't go far

011 a big lake. And let's face it, it's a whole lot easier to put out herbicides

than sweat under the sun on a mechanical harvester.

"Here's how it works. Let's say you are in charge of marketing a new

aquatic weed killer produced by Tox.idync Solutions, a giant of the

chemical industry. Where and how are you going to get the product

introduced to the marke~?" he asks. "You're not going [Q get the results

you need by advertising in Outdoor Life, or The American Water-Skier.

You may sell a little here and there to people who want to clean out

around the boat dock at their summer cabin, but that's not where the big

bucks are. The really big money for chemical weed-killers comes from

government, and quasi-government agencies and water resource au-

262 CHAPTER 22

chorities, and other agencies that control most of the nation's water­

ways. "

Chemical companies sponsor research by scientists who wind up

endorsing the chemicals under study, points out Ray. Research do.llars

are always hard [0 find, especially in low-prioriry areas. The sponsor

provides the dollars and hasa good chance [0 influence the parameters of

the research, and to get the label okay from the EPA: uThis product is safe

and effective when used according to the label instructions." That

blessing from the EPA is worth millions, maybe billions of dollars [0 the

company that gets it.

The connection between the chemical companies., research scientists,

and government agencies has existed for decades. Without it, most

chemical giants would be mom and pop operations, mixing up stuff on

the kitchen stove. The chemical company, in this case T oxidyne, gets a

good result from Professor Twitch at Kickapoo U., and this research

leads - many millions of dollars and many more hoops later - to the

official registration from EPA. The question now becomes how to sell it.

A chemical company doesn't necessarily call on the agency heads. It

can send its "detail men" to call on employees on the front lines, the

people who actually have to get out on the lake and get rid of the gras.s.

They show them all the paperwork: "EPA-registered," "just use as

directed," "spray it on and then go home."

Over the years, Toxidyne has learned just which bunons to push, just

how to presem its product in order to make the sale. It is worth it ro them.

Millions of dollars are at stake.

"There's no doubt," says Ray "that many times, surgical weed control

is necessary, but that does not justify wiping out the entire vegetated eco­

systems in a lake, down to the smallest micro-organism. When your grass

at home gets too long, you cut it, you don't kill it. Do YOll have to make

a cholce of getting a trim or being bald) Of course !lOt."

Ray thinks there is a better way, and he's giving this better way all the

suppOrt he can muster. For many years mecha~ical weed control has

been used. Lakeside cabin owners in the upper Midwest have employed

BATTLE FO R BASS WATERS 263

. mechanical currers for decades [Q clear the shallows around their docks,

and channels [Q open water.

The technology behind mechanical weed conrrol is clean and simple.

Visualiz.e awheat combine curring througha wheat field, then imagine

setting that currer mechanism on a barge instead of a wheeled chassis and

you've gOt the idea. Provide for raising and lowering the cutt~r head in

the water and solve a few drive and lube problems, and you have a

functioning aquatic grass cutter or harvester. The difference is that a

cutter chops and drops the grass inro the water while, if circumstances

demand, a harvestet brings the grass aboard a trailing barge for shore

disposal.

By the time Ray decided to take up the Lake Bastrop issue, he was

pretty well up to speed on the situation. He was amaz.ed at the diversity

of his allies: everything from bass clubs to a mainline church. The

coalition called itself BAIT for "Bener Aquatics in Texas." Oldham

represented FISH (Fishermen Involved in Saving Habitat), which fit­

tingly joined with BAIT to batrie the threat to Lake Bastrop.

Ray decided there were at least two ways he could help the cause.

With his experience in gathering crowds and in raising money, he took

on those responsibilities. But more immediately he could also call on his

friend, Texas Governor George W. Bush. Ray had come to know the

governor well through his friendship with his father, the former Presi­

denr. Both Bushes are life members of B.A.S.S.

Ray called the Governor and said, "Governor, I'm calling to ask for

a stay of execution on Lake Bastrop." He explained the situation and

asked the governor to use his office to postpone the poisoning of Lake

Bastrop. "We just wanr the chance to demonstrate the effectiveness of

mechanical harvesting," Ray said. 'This way the lake could be managed

and trimmed with barber's dippers as opposed to being nuked."

Ray knew the evidence was mounring in support of mechanical

control over toxic chemicals. A new study in the February 1998 issue of

Fisheries, published by the American Fisheries Society, underscored his

point. A team of scienrists, led by Mark H. Olson of Cornell University

264 CHAPTER 22

and Stephen R. Carpenter of the Universiry of Wisconsin, found that

cutting a series of deep, evenly spaced channels in the near-shore grass of

four experimenrallakes - in contrast to nine control lakes - increased

the growth rates of bluegill sunfish and largemouth bass.

Governor Bush contacted the river authority, which immediately

granted the delay. With Harold Sharp's help, Ray borrowed a mechani­

cal harvester and its operator from TVA. It cost $8,000 to haul the

machine from Tennessee to Texas. With help from his friends in BAIT,

Ray organized a phone tree that quickly raised the money in donations of

$1 to $20 from hundreds of fishermen and others across the country.

In short order, the machine was afloat in Lake Bastrop. Finingly,

Governor Bush came over from Austin for the demonstration, climbed

aboard, got in the driver's seat, and piloted the harvester across the lake

clipping grass as he went. "It's very effective," he said, as the cameras

rolled. "We cut a lot of hydrilla in a very short time."

Shordy after this demonstration, the LCRA placed an order for a

$200,000 srate-of-th·e-art harvester of its own. "As the governor said,"

Ray commented, "it's time for new thinking."

New thinking indeed. Sparky Anderson of Clean Water Action, a

member of BAIT, says that as ofJanuary 31, 1999, "There has not been

a chemical sprayof significant size by any large river authoriry in the past

year." Furthermore, a new organization has sprung up to take BAIT's

message nationwide. [t is called SMART, for "Sensible Management of

Aquatic Resources Team."

Meanwhile, back home in Alabama, Ray staged a pre-emptive strike

against any further poisoning in rivers and lakes across the country. He

enlisted the help of Harold Sharp, who had organized a highly successful

1993 anti-herbicide parade in Chattanooga for the benefit of the TVA.

Ray and Harold organized a "Grass Parade" from Scottsboro to the

shores of Lake Guntersville that drew 731 boats from fourteen states. It included a large contingent of Texans.

'The name of the game is education," Ray says. "We have to spread

the word . As more and more people understand that there's no need

risking destruction of fish habitat, drinking chemicals, swimming in

292 CHAPTER 24

home and told Susan what an incredible experience it was. I was so glad

co be there."

Ie was a parricularly emotional moment when California angler Mike

Folkestad, a former Classic contender and Eagles of Angling parricipant,

presented Ray with a plaque that read:

"With our deepest appreciation and warmest welcome to Ray SCOtt,

Founder, Bass Anglers Sportsman Society. Your inspiration, creativity

and leadership has brought America's finest fishermen into an arena of

competition and camaraderie that is unparalleled - anywhere. We are

forever grateful- forever loyal. From the bass fishermen of the West,

presenred at the B.A.S.S. California Delta Invitational, September 30,

1997."

B.A.S.S . was to discover not only avid fishermen in California, but

outstanding fishing as well. In the Aptil 1999 tournament, again at the

Delta, tournament records were broken. The largest one-day, five-fish

creel ofJhirry-four pounds, seven ounces was brought in by Mark Tyler

and included the largest tournament bass ever offourreen pounds, nine

ounces.

California also claims another record bass - a twenty pound, fifteen

ounce monster - caught by David Zimmerlee at San Diego's Lake

Miramar in 1973. Ray has a mounted replica in his office and has had

great fun with it. At Ol}e point he pulled it out of a boat while fishing with

President Bush. Several non-fishing reporrersexcitedly snapped pictures

and rook notes. However, skeptical heads prevailed and it made the

papers as a gag.

In 1997, Ray finally met Zimmerlee at a Triton Boat Show in Kansas

City. Follo\,/.ing an enjoyable conversation, Zimmerlee graciously sent

Ray the Zebco 33he caught the big fish with and it now sits in his office

near the mount of the fish.

Another tribute came Ray's way in 1998 when he was in Texas for the

weed harvester demonstration at Lake Bastrop. After Governor George

w. Bush rode the harvester, he invited Ray ro the Austin mansion for a

private supper with him and his chief of staff, Joe Allbaugh . .

Ray was srruck by the unpretentious warmrh of the Governor's

SAILING INTO THE SUNRISE 293

mansion. bur even more so by [he wonderful irony [hat he was with [he

son of a man he so admired. rwenry years after [he elder Bush had made

a run for [he presidemial nomination. And in 1999 his son was poised w

do [he same.

Governor Bush is an avid fisherman and a life member ofB.A.S.S . In

his swdy after dinner, he showed Ray a gubernarorial campaign video

commercial [hat opened with him fishing in his bass boar. When i[ was

over, Ray recoums. "George W . wId me [hat outside his father and

family, [he (wo men who had had [he most profound effect on his life

were Billy Graham and Ray Scon. One had [aught him about faith and

[he other about bass fishing.

"And [hey borh mean a lo[ in his life," says Ray. "When you get down

w it, fishing is a way of being close [0 God. It was one of [he highest

compliments I have ever been paid." Old friend Dave New[on says [he

accolade is well deserved. "How many men can say [hey rouched millions

of lives in such a positive way?"

And remarkably. j[ had all grown from Ray's rainy day vision, four

precious n;mesand a [hree-by-five metal file box of "hand-carved

names."

"I had so much help along [he way," says Ray. "There were many.

many fine people who extended a helping hand."

One of those helping hands came from Homer Circle. [he long[ime

much-honor~d angling editor of Sports Afield. He believed in Ray SCO[[

and B.A.S.S. from [he beginning. In 1967 Homer offered a benediction

a[ the conclusion of [he banquet a[ Ray's very first All-American Bass

Tournament a[ Beaver Lake. I [ was a riwal that would become a

cradition at the many Classics he attended through [he years.

A copy of this prayer is one of Ray's favorite keepsakes. And i[ sums

up much of his feelings for the spon and [he men and the faith [hat has

driven him since that rainy day in Mississippi . Here is what "Uncle

Homer" prays:

Almighty and all-loving father. we fishermen [hank Thee for

blessings of Thy great outdoors. especially [he privilege [0 pursue our

... _ '.r •. ". __ ~ .", \ •• ", .• ~

" ".

EXHIBIT 12

EXHIBIT 12 . ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746] .

) .

/

/ MORRIS DEES, .JR. ATlO"""EV ""NO COU""~Cl.OA. AT LAW

,lJJc ",TlAkfA H'CHwA'"

' . o . eO);; ').l 0 "6

MONTnOMERY.ALABAMA

July 9, 1970

Mr. Ira DcMent United States District Attorney Middle ·District of Alabama Federal nuilding Montgomery, Alabama

Dear Ira:

HI.£/'HOfolE 172

I represent the Bass Anglers Sportsman Society of America, Inc. (DASS). this is a national association of bass fishennen with over 11,000 members in all 50 states. Mr. Ray Scott is national president. The national headquarters are located at 1616 Mt. Meig~ Road, Montgomery, Alabama. . .

nASS respectfully infonns you, as United States District Attorney, that the attached list of companies, and other entities, are depositing refuse into navigable streams or their tributaries wi thout a penni t from the Secretary of the Arrrly, and are in vio­lation of Tit. 33, U.S.C. 407. (Exhibit A). BA~srs president, Mr. Ray Scott r s affidavit to this effect is also attached. (Exhi­bit B).

BASS requests your office to take action at your earliest convenience against these companies and other entities. BASS hereby makes a claim for one-half of any fines that might be uiti­mately levies against these offenders as authorized by Tit. 33, U. S.C. 411.

Should your office need assistance in thiscGse, please contact me . and I r 11 gladly make the information BASS has .avai1able to you. Your attention is called to the case of United Siat~s v. Standard Oil Company, 304 U.S. 22 11, 16 L. ed. 2d·492, ·86 S. Ct.l427 (1966). The gravamen of the crime is depositing refuse without a permit and should be easy to prove.

cc: Col. Harry A. Gr{ffith Corps of Engineers

StGnley Risor Secre t<1ry of the Army

Sincerely,

[k~-.2 . Morris Dees

r X II I II I T

. -

EXHIBIT 13

EXHIBIT 13 ATTACHMENT TO:

SELF-EXECUTING AFFIDAVIT OF PAUL BENTON WEEKS III

[28 U.S.C. § 1746]

• 1308 253 FEDERAL REPORTER, 3d SERIES

TAIL DEFENDANTS INCLUDING THOSE THAT EMPLOY PHARMA­CISTS WHO SELL CIGARETTES FOR CLAIMS BROUGHT UNDER THE ALABAMA EXTENDED MANU­FACTURER'S LIABILITY DOC­TRINE, OR PREMISED ON NEGLI­GENCE, WANTONNESS, OR CML CONSPIRACY UNDER ALABAMA LAW.

[7] Our phrasing of the question is not intended to restrict the scope or inquiry by the Supreme Court of Alabama. As we have stated recently in Spain v. Brown & Williamson, 230 F.3d 1300 (2000):

[T]he particular phrasing used in the certified question is' not to restrict the Supreme Court's consideration of the problems involved and the issues as the Supreme Court perceives them to be in its analysis of the record certified in this case. This latitude extends to the Su­preme Court's restatement of the issue or issues and the manner in which the answers are to be given, whether as a comprehensive whole or in subordinate or even contingent parts. Blue Cross & Blue Shield of Alabama, 116 F.3d at 1414 (quoting Martinezv. Rodriquez, 394 F.2d 156. 159 n. 6 (5th Cir.1968) (citations omitted». That means, among other things, that if we have overlooked or mischaracterized any state law issues or inartfully stated any of the questions we have posed, we hope the Alabama Supreme Court ',\iJl feel free to make the necessary corrections.

Spain, 230 F.3d at 1312.

The entire record, including the briefs of the parties, is transmitted herewith.

QUESTION CERTIFIED.

Bradley MURRAY, as a member and legal representative of the .Bass An­glers Sportsman Society, Plaintiff-Ap_ pellant,

v.

Ray W. SCOTI', Jr., BA.S.S., Inc., et al., Defendants-Appellees.

No. 99-12194.

United States Court of Appeals, Eleventh Circuit.

June 13, 200 1.

Member of unincorporated sporting association brought class action against of­ficers of similarly named corporation for conversion and misappropriation. After ac. tion was transferred on defendants' mo­tion, plaintiff filed motion for recusal of judge. The United States District Court for the Middle District of Alabama, No. 94-0l266-CV-D-N, Ira De Ment, J., 929 F.Supp. 1461, denied motion, and subse­quently entered summary judgment for defendants, 50 F.Supp.2d 1257. Plaintiff appealed. The Court of Appeals, Edmondson, Circuit Judge, held that Dis­trict Court judge should have recused him­self based on fact that, while serving as government attorney, he had appeared as counsel of rec-r)rd in action in which corpo­ration was party, possibly giving him knowledge of facts disputed in instant ac· tion.

Vacated and remanded.

1. Judges <>51(4)

Under federal judicial disqualification statute, benefit of doubt must be resolved in favor of recusal. 28 U .S.C.A. § 455.

MURRA Y v. SCOTI' 1309 Cite as 253 F.3d 1308 (II tli Cir. 2001)

2. Federal Courts <&=>819

Court of Appeals re\iews for abuse of discretion judge's decision ",hether to re­cuse himself. 28 U.S.C~'\. § 455.

3. Judges e=>5l(4)

Wben federal district court judge con­siders recusal, he must consider his poten­tial confljct with regard to overall case, not just v:ith regard to each separate issue or each stage of litigation . 28 U.S.C.A. § 455.

4. Judges e=>47(I)

Disqualification of federal district court judge was required, in conver­sion/misappropriation case brought by member of unincorporated sporting associ­ation again~t officers of similarly named corporation, where judge, while serving as government attorney, had been counsel of record in corporation's suit against govern­ment and alleged industrial polluters; judge's involvement in earlier action couJd have .given him !mowledge of disputed facts in con~ersion suit, including whether corporation was originally founded as unin­corporated association. 28 U.S.C.A. § 455(b)(1, 3).

5. Judges e=>47(1)

Federal district court judge who pre­yiously served as counsel of record for related case may be disqualified on that basis. 28 U.S.C.A. § 455(b)(1, 3).

6. Federal Courts <&=>541

Court of Appeals lacked jurisdiction to review transfer decision made by district court in another circuit.

* Honorable Norma L. Shapiro. U.S .' District Judge for the Eastern District of Pennsylva-

Randall Fisher, Nev.rton, KS, for Plain­tiff -Appellan t.

Letitia M. Brov"l1 , Joseph B. Haynes, Michael R. Smith, King & Spalding, J. Allen Maines, Eric C. Lang, G. Mark Cole, Paul, Hastings, Janofsky & Walker, LLP, Atlanta, GA, John H. Morrow, Matthew H. Lembke, Bradley, Arant, Rose & White, LLP, Jayna Partain Lamar, Maynard, Cooper & Gale, PC, Birmingham, AL, C.C. Torbert, Jr., Maynard, Cooper & Gale, P .C., Montgomery, AL, for Defendants­Aopellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before EDMONDSON and BIRCH, Circuit Judges, and SHAPIRO*, District Judge.

EDMONDSON, Circuit Judge:

This appeal is about judicial recusal. Because we conclude that the district court judge should have recused himself from this case, we vacate the judgment and remand for further proceedings.

I.

Plaintiff Bradley Murray, a member of the Bass . Anglers Sportsman Society (BASS), brought suit individually and on behalf of approximately 500,000 other BASS members against Bass Anglers Sportsman Society, Inc. (BASS, Inc.) and its officers, claiming that BASS, Inc. fraudulently converted BASS funds and

nia , sitting by des ignation.

1310 253 FEDERAL REPORTER, 3d SERIES

property.1 Plaintiff initiated the litigation in the district court of Kansas, but the Kansasctistrict judge transferred the case to the Middle District of Alabama. Mur­ray v. Sevier, 156 F.R.D. 235, 257 (D.Kan. 1994). The case was assigned to Judge Ira De Ment. Relying largely on some acts that Judge De Ment had taken in regard to BASS before he became a judge, Plaintiff moved to recuse Judge De Ment; the motion was denied.

In his fifth amended complaint, Plaintiff claimed that when Defendant Ray W. Scott, Jr. first formed BASS in 1967, it was an unincorporated association dedicat­ed to promoting conservation and bass fishing. BASS sponsored bass fishing tournaments and communicated with its members through BASS Masters Maga­zine. In 1969, Scott filed a certificate of incorporation for BASS, Inc. under the laws of Alabama. Plaintiff claims that Scott convinced potential members that they were joining a non-profit entity devot­ed to promoting bass fishing, conservation, and youth fishing when they were actually joining BASS, Inc., a for-profit entity. Plaintiff claims that under this "shell game" Scott was siphoning off members' dues for his own personal benefit. Defen­dant responds that BASS was founded as a membership club owned and operated for profit by Scott.

Both sides filed summary judgment mo­. tions on various grounds. The district

1. We may at times refer to BASS and BASS, Inc. collectivel~' as BASS. But our reference to BASS or BASS, Inc . in this opinion carries no legal significance, and we make no legal determination about the status of BASS or BASS, Inc.

2. Judge De Ment characterized the threshold issue as "whether Plaintiff has met his burden and proven that BASS, prior to its incorpo­ration in 1969, was created as an unincorpo­rated association." Murrav v. Sevier, 50 F.Supp.2d. 1257, 1274 (M .D.Ala .1999J. Thus,

court granted summary judgment for De­fendants and certified the order for appeal under Fed.R.Civ.P. 54(b).

II,

[1,2] Plaintiff argues that Judge De Ment abused his discretion when he did not recuse himself from this case under 28 U,S.C. § 455. Congress amended the re­cusal statute in 1974, which "liberalize[d] greatly the scope of disqualification in the federal courts," United States v. State of Alabama, 828 F.2d 1532, 1541 (lIth Cir. 1987). Under section 455, a judge has a "self-enforcing obligation to recuse himself where the proper legal grounds exist." I d. at 1540. Most· important, the benefit of the doubt must be resolved in favor of recusaI. Id. We review a judge's decision to recuse for abuse of discretion. McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir.1990):

A..

[3] AB an initial matter, both parties have argued that the charac;terization of the "threshold" issue of the merits portion of the litigation is relevant to determine whether Judge De Ment should have been recused.z But when a district judge con­siders recusal, he must consider his poten­tial conflict with regard to the overall case,

to resolve the threshold issue, only evidence before the 1969 incorporation was relevant, and the later 1970 BASS lawsuit in which Judge De ~ent participated was "'not relevant to the present determination." [d. Because Judge De Ment concluded that BASS was not operating as an unincorporated association in 1967, he never reached the ultimate issue and instead dismissed the case. So Judge De Ment considered no evidence of which he allegedly had prior knowledge or partie· ipation .

',;' , .....

MURRA Y v. SCOrf 1311 Cite as 253 F.3d 1308 (111h Cir. 200 I) .

not just his potential conflict for each sepa­rate issue or each stage of the litigation. See United Statesv. Feldman, 983 F.2d 144, 145 (9th Cir.1992) ("[W]hen a judge

detennines that recusal is appropriate it is not within his discretion to recuse by sub­ject matter or only as to certain issues and not others."). Thus, even though some historical evidence . involving Judge De Ment may not have been pertinent to re­solye the threshold issue (whether BASS was created as an unincorporated associa­tion), such evidence-depending on how De Ment resolved the threshold issue­might become relevant to resol~e the ulti­mate issue: whether BASS Inc. fraudu­lentlyabsorbed the assets of BASS. So we must review Judge De Ment's decision not to recuse himself in the light of the ulti­mate issue in the case at the time of recusaL That Judge De Ment defined and ruled on a potentially dispositive threshold issue means nothing to our review of Judge 'De Ment's recusal decision.3

B.

Plaintiff points to a series of facts that Plaintiff says require Judge De Ment's recusal in this case. First, in 1970, Morris Dees, an attorney representing BASS, mailed a letter to De Ment, then United States District Attorney for Uie Middle District of Alabama, informing De Ment that some companies were depositing re­fuse into streams without a permit, alleg­edJy in violation of 33 U.S.C. § 407. Dees referred to his client as "Bass Anglers Sportsman Society of America, Inc." but

3. We note that Judge De Ment ruled on the recusal issue in March, 1996, but did not define or rule on the "threshold issue" until June 1999.

4. The suit was ultimately dismissed for lack of standing because the statute that plaintiffs

also described the entity as CIa national association of bass ' fishermen ." Plaintiff argues that this letter shows that in 1970, Defendant held itself out to De Ment as a national association and failed to reveal its for-profit status.

Second, De Ment, in 1970, was men­tioned in the complaint . and served as counsel of record in an unsuccessful civil suit filed by BASS against industrial plants and the government for dolation of 33 U.S.C. § 407. See Bass Angler Sports· man Society v. United States Steel Corp. 324 F.Supp. 412, 413 (S.D.Ala.1971). At­torney Dees' letter to De Ment served as the prerequisite for the lawsuit and was attached to the 1970 complaint in an effort to establish standing to enforce the federal statute.4

Third, as counsel of record in the 1970 litigation, De Ment filed a brief on behalf of the government defendants. The cap­tion of that brief lists the plaintiff as "Bass Anglers Sportsman Society, Inc.," but then refers to the plaintiff as "Bass Anglers Sportsman Society" in the body of the brief. Plaintiff argues that this brief dem­onstrates that De Ment, as counsel of rec­ord in federal court, took the position that BASS · and BASS Inc. existed as the same entity.

Fourth, Plaintiff notes that during a sta­tus conference in the present case, Judge De Ment referred to BASSIBASS I~c. as a business. Also, during the summary judg­ment hearing, Defendant said that BASS Inc. fIled the 1970 BASS lawsuits; but

sought to enforce provided only for criminal sanctions: no civil action existed to enforce it. BA.s.S., 324 F.Supp. at 415 . The issues of associational standing and the status of plain· tiff as an unincorporated association or a for­profit corporation were not litigated.

1312 253 FEDERAL REPORTER, 3d SERIES

Judge De Ment recalled seeing a television interview where Scott and Dees claimed to have filed the lawsuits.

Fifth, Plaintiff alleges that Judge De Ment shares a 30-year friendship with Dees and that he is associated with people · known to be politically associated with Scott.

C. Plaintiff says that these facts implicate

the federal recusal statute. 28 U.S.C. § 455. Section 455(b) requires disqualifi­cation under certaincir~umstances, for ex­ample, when a judge has "personal knowl­edge of disputed evidentiary facts," § 455(b)(1), when a judge "served in gov­ernmental employment and '. .. participat­ed as counsel ... concerning the proceed­ing," § 455(b)(3), or when a judge is "likely to be a material witness in the proceed­ing." § 455(b)(5)(iv).5 Under this provi­siDn, recusal is mandatory. In such situa­tions, "the potential for conflicts of interest are readily apparent.'; State of Alabama, 828 F.2d at 154l.

[4, 5] Plaintiff argues that Judge De Ment has personal knowledge of disputed

5. Plaintiff also relies on section 455(a). which requires a federal judge to " disqualify himself in any proceeding in which his impartiality might reasonably he questioned ." 28 U.S.c. § 455(a). We do not rely on the appearances test· to decide this case.

For a criticism of ;,; 'pearance ethics, see P.W. Morgan & G.H. Reynolds. T/1e Appear­ance of/mproprien' (1997).

6. Plaintiff also points to statements made by Judge De Ment that he had observed pertinent representations made by Scott and Dees on television . But we doubt that Congress in­tended to disqualify judges based on represen­tations that a judge saw on television years before the case was flied in his court .

Plaintiff also argues that Judge De Ment's associations with Dees and Scott create an appearance of impropriety that warrants reo

evidentiary facts . based on his involve_ ment with the 1970 litigation, in which De

Ment participated · as counsel of record, fJ.led a brief, and received a letter from a

BASSIBASS, Inc. attorney.6 A district judge who previously served as counsel of record for a related case may be disquali­fied. State of Alabama., 828 F.2d at

1545-46. State of Alabama involved the desegregation of Alabama's higher edu­cation institutes under Title VI. The

case was assigned to Judge Clemon. who-as a lawyer-had previously repre­sented different plaintiffs in another Tille VI desegregation case against some of the same defendants. Although Judge Clemon explained that his involvement was limited to representing black high school principals (who were not parties to

the State of A.labama litigation) in a race discrimination suit,' we concluded that U[e]ven this limited involvement . [] left Judge Clemon with knowledge of facts that were in dispute in the instant case." Id. at 1545. Even though the underlying issue in State of Alabama (desegregation of state institutes of higher education) was not about racial discrimination

cusaJ. Judge De Ment 's relations with these persons, when viewed in the light of the over. all circumstances. probably do riot creale even an appearance of impropriety. We have previoush' recognized that "an inescapabk part of our S\'stem of government (is) that judges are c :~l\m primarily from laWyers who have participated in public and political af· fairs ." Slate of Alabama, 828 F.2d at 1543 (quoting Curry I '. Baker, 802 F .2d 1302 (lIth Cir.1986) (Vance, J . mem.»). And we cannot expect, nor do \\'e require, judges to eliminat..: all relations outside of their judicial roles .

7. The case on which Judge Clemon worked was one of many cases captioned Lee v .. A..Jv · call Coullly 3d. of Educ., some of which did not include the claims against higher edu· cation institutes.

.... ..... : ... :

;:

, .

MUR RA Y. v. SCOTI' 1313 Cite as 253 F.3d 1308 (II th Cir. 2001)

against high school principals, the ques­tion of whether black ' high school princi­pals suffered racial discrimination ulti­mately became a factual issue in the case; and the plaintiff presented testimony and exhibits about the status of the state's black high school principals. Thus, Judge Clemon was confronted v.ith evidence about which he had prior knowledge based on his role as counsel of record in a separate lawsuit.

Likev..ise, Plaintiff argues that represen­tations made during the 1970 BASS litiga­tion in which Judge De Ment was then counsel of record may potentially become an issue in the present litigation. This contention seems plausible. If the district court had concluded that BASS was an unincorporated association in 1967, then Plaintiff apparently would have used the complaint in B.AS.S. v. United States Steel Corp, the letter to then U.S. Attor­ney De .. Ment, and the brief filed by De Ment as eVidence that Defendant held it­self . out as an association when it was actually operating as a for-profit company.

The St.ate of Alabama decision leads us to require recusal here. Because of Judge De Ment's involvement in the earlier BASS litigation, Plaintiff has shown that Judge De Ment may have knowledge of facts in dispute in the present case. That the undedying issue in the present case was not litigated in the 1970 litigation makes no difference. Plaintiff hopes that the evidence may show that in the 1970 BAss litigation, BASS represented 'itself both as an unincorporated association and a for-profit corporation to then U.S. Attor­ney De Ment and that De Ment accepted BASS and BASS, Inc. as the same entity.

8. Defendants suggest in a footnote that, even if Judge De Ment should have disqualified himself, any error was harmless. See Lilje­berg v. Health Servs. Acquisilion Corp., 486 U.S. 847, 108 S.Ct. 2194, 2203-5, 100 LEd.2d 855 (J 988) ; Parker v. Connors Steel

/

And even if Judge De Ment cannot now recall the specific facts about his involve­ment in the 1970 BASS litigation, his mem­ory might h,lVe sharpened as the litigation advanced. More important, the record is strong enough to presume personal knowl­edge of facts by virtue of his having partic­ipated as counsel of record in the 1970 BASS litigation, litigation that-given the arguments of Plaintiff~oncerns (that is, might affect) this proceeding. Doubt must be resolved in favor of recusal.

We appreciate that judges are often re­luctant to recuse themselves and, thereby, to send a tough or unpleasant case to a colleague. Furthennore, we do not decide or hint today that Judge De Ment either has acted unfairly to the parties as he ruled on this case or has utterly disregard­ed his ethical duties. We also recognize that this litigation spans nine years, two states, and ' numerous appeals~ The record as already developed is extensive. The federal jucliciary has already devoted con­siderable time and resources to resolve this litigation. So, many factors make re­cusal an unattractive course. But Con­gress has directed federal judges to recuse themselves in certain situations, and we accept that guidance. Judges must not recuse themselves for imaginary reasons; judge shopping should not be encouraged. Still, federal judges must early and often consider potential conflicts that may ' arise in a case and, in close cases, must err on the side of recusal.8 And if a judge must step aside, it is better to do it sooner instead of later.

III.

At oral argument, Plaintiffs counsel suggested that we must still resolve the

Co ., 855 F.2d 1510,1526-27 (11th Cir. 1988). Because of the many rulings by Judge De Ment that pre-dated the summary judgment decision. see. e.g., Murray v. Sevier. 50 F.Supp.2d 1257 (M.D.Ala.1999); Ml~rray v. Sevier, 993 F.Supp. 1394 (MD .Ala .1997).

1314 253 FEDERAL REPORTER, 3d SERIES

transfer issue even if we concluded that Judge De Ment should be recused. We disagree.

[6] Both Plaintiff and Defendants have spent a considerable portion of their briefs arguing the merits of the Kansas court's transfer order. But we "lack[] appellate jurisdiction to review the decision of a district court in another circuit," Roofing & Sheet Metal Serv., Inc. v. La Quinta Motor Inns, 689 F.2d 982, 986 (lIth Cir. 1982). See also Moses v. Business Card Express, Inc., 929 F.2d 1131, 1136 · (6th Cir.l991); Linnell v. Sloan, 636 F.2d 65, 67 (4th Cir.1980). Plaintiff followed the proper avenue of review by filing a petition for mandamus in the Tenth Circuit to en­join the transfer. A two-judge panel from the Tenth Circuit denied the writ of man­damus. Further review of that decision must be pursued to the Supreme Court.

. If our recusal decision had gone the oth~r way, we would have jurisdiction to review the Plaintiffs motion in the Middle District of Alabama for transfer back to the Kansas district court. See Roofing & Sheet Metal, 689 F.2d at 989 ("[T]his court would naturally have jurisdiction to review the disposition of [a motion to retrans­fer ]."). See also Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1257 (4th Cir. 1991); Moses, 929 F.2d at 1136. Becau;e we conclude that Judge De Ment should have recused himself. we will not review the substance of his denial of Plaintiffs motion to retransfer. But we note that "[i]f the transferee court can find the transfer decision plausible, its jurisdiction­al inquiry is at an end." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 108 S.Ct. 2166, 2179. 100 L.Ed.2d 811 (1988) (concluding that adherence to law of

some of which involved exercises of discre­tion, \'ie conclude that the harmless error standard is practically unworkable and, thus, inappropriate here. See Liljeberg, 108 S.Ct. at

the case docbine obviates the need to reo view "every marginal jurisdictional di.'i­pute."); see also Doko Farms 11. United States, 861 F.2d 255, 256-57 (Fed.Cir.19~) ("[Appellee]'s argument persuades us that the [transfer] question is close. Under such circumstances, to engage in a full review would be contrary to law-of-the­case principles.").

VACATED and REMANDED for a..'i­

signment to another district judge in lh(. Middle Disbict of Alabama and for further proceedings.

Herbert H. DAVIS, Plaintiff-Appellee,

v.

NATIONAL MEDICAL ENTERPRISES, INC., Defendan t-Appe llan t.

National Medical Enterprises, Inc., a foreign corporation authorized to do business in the State of Florida. Plaintiff-Appellant,

v.

Susan Da"is., Bessemer Trust, personal representatives of the estate of the "Herbert Davis Marital Trust 'B' Un­der Agreement Dated January 10, 1991", Defendants-Appellees.

\" o. 00-1218l.

United States Court of Appeals, Eleventh Circuit.

June 15, 2001.

Post-tlial motions for attorney f€es arising out of indemnification claim under

2205 C[Harmless error] relief is [1 neither categorically available nor categorically un· available for all § 455(a) violations . ").