FRANK, Judge.
Sharon Breeden Wood, appellant, was convicted, in a bench trial, of two counts of felony child endangerment, in violation of Code § 18.2-371.1(B)(1). On appeal, she challenges the sufficiency of the evidence and the admission of certain statements made by appellant. For the reasons stated, we affirm.
Appellant was also convicted of driving under the influence, in violation of Code § 18.2-266, but this conviction is not a subject of this appeal.
BACKGROUND
[1,2] On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). "The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Id.
So viewed, on September 23, 2008, C.W. observed appellant seated behind the steering wheel in her parked car in a commercial parking lot "hunched over and swaying back and forth." Appellant's two small children, ages two and five, were seated in the back seat, both in car seats. The back door to the car was open several inches. As C.W. pulled her vehicle next to appellant's, the "little boy" shut the door. A child said, "Mommy, let's go." Appellant did not respond.
C.W. observed that appellant's hair was messy, her eyes were "droopy," and her speech was slow and "a little bit slurred." C.W.'s fiancé approached appellant's vehicle to ascertain if appellant was all right. Appellant told him that she was "pretending." C.W. and her fiancé went into a store to shop. When they left the store about a half-hour later, appellant's car had not moved and the engine was still turned off.
C.W. saw appellant chewing on some type of rag and then telephoned 911. C.W. observed appellant slowly drive her car from the parking lot to an adjoining lot near a bookstore, a distance less than 100 yards. The driver's side tire of Wood's car "grazed" the curb at the end of the aisle as she drove away. Other than "grazing" the curb, C.W. observed no erratic driving. Police officers arrived while C.W. and her fiancé were still in the parking lot. Sergeant George Russell of the Henrico Police Department, in response to the 911 call, saw appellant in the driver's seat with a "wash cloth or a towel next to her face," and two small children in the back seat of the car.
Upon Russell's request, appellant rolled down the driver's window. Appellant's speech was slurred, and her eyes had a "gaze." Russell asked her for her identification. The car engine was still running, and the air conditioning was on. As appellant looked for her wallet, Russell noticed an odor of alcohol. Appellant searched for five minutes for the wallet, during which time she was "all over the front of the car." Appellant told Russell she had had a glass of wine with friends at lunch and was on her way to pick up another child from school. The school is about two to three miles from the scene. Russell then turned the investigation over to other officers.
As appellant was placed under arrest for driving while intoxicated, she struggled with the officers, protesting that she needed to take care of her children. She refused to enter the police car and upon being forced in, she slipped out of the handcuffs and attempted to escape from the police car. Throughout the struggle, appellant said she needed to return to her children. She became belligerent, cursing at the officer and threatening to have him fired. Ultimately, the officer forced appellant to the ground and restrained her with leg irons. She continued to "rant and rave," for approximately fifteen minutes.
Henrico Police Officer Lawrence Peranski, one of the officers at the scene, noticed that appellant was stuttering and had a "moderate" odor of alcohol. Appellant told Officer Peranski she had taken the drug Paxil, and had consumed a glass of wine with lunch.
Paxil is an antidepressant in a group of drugs called selective serotonin reuptake inhibitors.
Peranski administered field sobriety tests. Appellant was wobbling during the tests. On some tests she performed adequately, and on others she performed poorly. Appellant's blood alcohol content was .19 when the test was administered at 4:31 p.m.
Dr. Les Edinboro, a forensic supervisor at the Division of Forensic Science, testified as an expert in forensic toxicology without objection. Using "reversal extrapolation," he testified that although the analysis of the blood drawn at 4:31 p.m. was .19% by weight by volume, at the time of her driving appellant's blood alcohol level was .22 to .26% by weight by volume.
Dr. Edinboro described alcohol as a central nervous system depressant. He explained that judgment, perception, and control are necessary factors for safe driving. At a blood alcohol content of .22, one experiences "the loss of all critical judgment." At that level an individual's perception is impaired because one suffers double vision, blurred vision, and a delayed ability to recover from glare. Regarding control, Dr. Edinboro opined that "at these levels," there is a "severe impact upon sensory motor coordination, motor coordination, balance."
Drowsiness becomes a problem because "the brain is actually starting to go to asleep [sic] because the amount [of alcohol] is so high." Dr. Edinboro testified at that level of intoxication one would exhibit "exaggerated emotional states," and "an inability to control actions and behaviors." The individual's reaction time would also be profoundly increased. The scientist opined that to reach a .22 BAC, one would have to consume about ten alcoholic beverages.
Appellant's blood at the time of its removal showed a level of Zolpidem (trade name Ambien) at .06 mg/liter. At the time of the incident, Dr. Edinboro opined the level would be .12 mg/liter. The level of Ambien was consistent with the ingestion of one tablet. This drug is a hypnotic drug with the primary purpose of inducing sleep.
Dr. Edinboro explained the behaviors of one who has taken Ambien are those of one in a "sleep-like state." The warnings attached to Ambien direct the patient to allow seven to eight hours for sleep from the time the medication is consumed, so that one is not aroused from sleep. If such is the case, one will experience "drowsiness, confusion, lack of cognitive ability and some motor incoordination." Dr. Edinboro said, "It's like being aroused out of a sleep and not being able to function correctly."
He opined that the fact that there is Zolpidem in the blood at .09 indicates the person should be sleeping, not driving. Finally, Dr. Edinboro noted that both alcohol and Zolpidem are central nervous system depressants, so there is an "additive effect" when both are consumed, and it is "very hazardous to even [] attempt to operate a motor vehicle" at the levels present in appellant's blood.
In finding appellant guilty, the trial court found willful conduct, that she was intentionally driving after drinking alcohol and taking Ambien, that she had a high level of intoxication, that appellant had to know the effects of alcohol, and concluded:
I find from the evidence that the defendant intentionally drove in the car after drinking alcohol and taking the Ambien prescription medication. This was willful, meaning that it was a knowing, intentional act in the care of a child.
I find from the facts, from the testimony that her level of intoxication was very high. Dr. Edinboro's testimony was credible and he wasn't impeached in any way, that she had a blood alcohol content at the time that the police arrived of about .22. And he described the effects of that level of intoxication on motor skills, judgment, and control.
* * * * * *
And I have to infer that if she had the prescription, she had to know the warnings not to operate machinery or a motor vehicle while under the influence of the Ambien. And in addition there was evidence that she intended to drive from the [parking lot] where she was at 1:00 p.m. to [the school].
The thing that takes this case out of the ordinary DUI is that she was so intoxicated that a citizen, [C.W.] and her boyfriend, were disturbed in their observations of the defendant and they were so concerned that they called the police. And then you have the fact that when they went into the [store], after first checking on Ms. Wood, it was 30 minutes before they came out of the [store], and she was still in the same condition. And in the condition they described was this semi-conscious condition that she was slumped over the wheel.
. . . [S]he was drowsy, she had slurred speech, and she had been sitting in the parking place for 30 minutes. She failed the sobriety tests. And she reacted to the police investigation in a very unusual manner. She did not have the ability to control her motor skills or use her mature judgment that we consider necessary for parents of small children.
The question at law is whether this was gross, wanton, and culpable. I find that it was aggravated conduct. It was culpable because it was not improbable that injury to the children would occur when she drove away from the [parking lot].
* * * * * *
But with all of these circumstances, it seems to me that it's very clear that her conduct created a probability of injury or death to the children.
This appeal follows.
ANALYSIS Felony Child Neglect
Appellant was convicted of violating Code § 18.2-371.1(B)(1), which provides in relevant part:
Any parent, guardian, or other person responsible for the care of a child under the age of 18 whose willful act or omission in the care of such child was so gross, wanton and culpable as to show a reckless disregard for human life shall be guilty of a Class 6 felony.
[3-5] When considering on appeal the sufficiency of the evidence presented below, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it." Davis v. Commonwealth, 39 Va.App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va.App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc). Under this standard, "a reviewing court does not `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Myers v. Commonwealth, 43 Va.App. 113, 118, 596 S.E.2d 536, 538 (2004) (citation omitted and emphasis in original). It asks instead whether " `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.`" Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)) (emphasis in original). Thus, we do not "substitute our judgment for that of the trier of fact" even if our opinion were to differ. Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002).
[6-9] In order for a person to be convicted of felony child neglect, the Commonwealth must prove beyond a reasonable doubt that the accused committed a "willful act or omission in the care" of a child. Morris v. Commonwealth, 272 Va. 732, 738, 636 S.E.2d 436, 439 (2006). The Commonwealth also must prove that the act or omission is "so gross, wanton and culpable as to show a reckless disregard for human life." Code § 18.2-371.1(B)(1).
"The word `gross' means `aggravated or increased negligence' while the word `culpable' means `deserving of blame or censure.`"
Cable [v. Commonwealth], 243 Va. [236,] 240, 415 S.E.2d [218,] 220 [(1992)] (quoting
Bell v. Commonwealth, 170 Va. 597, 611,
195 S.E. 675, 681 (1938)). Gross negligence amounts to criminal negligence "when acts of a wanton or willful character, committed or omitted, show `a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his [or her] acts.'"
Brown [v. Commonwealth], 278 Va. [523,] 528-29, 685 S.E.2d [43,] 46 [(2009)] (quoting
Riley v. Commonwealth, 277 Va. 467, 484,
675 S.E.2d 168, 177 (2009)). . . .
In determining whether conduct rises to the level of criminal negligence, an "objective standard" applies, and criminal negligence may be found to exist when the defendant
"either knew or should have known the probable results of his[/her] acts."
Riley, 277 Va. at 483-84,
675 S.E.2d at 177 (internal quotation marks omitted)[.]
Noakes v. Commonwealth, 280 Va. 338, 346, 699 S.E.2d 284, 289 (2010) (other citations omitted).
[10,11] Thus, the Commonwealth need not prove that an accused actually knew or intended that her conduct would likely cause injury or death, but rather that the accused should have known her acts created a substantial risk of harm. Id. "`[W]hether the required intent exists is generally a question for the trier of fact.'" Haywood v. Commonwealth, 20 Va.App. 562, 565-66, 458 S.E.2d 606, 607-08 (1995) (quoting Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)).
Unlike Code § 18.2-371.1(A), the plain language of Code § 18.2-371.1(B)(1) does not require that a child actually suffer serious injury as a result of a defendant's acts or omissions. "The absence of an injury requirement in subsection (B)(1) reflects the lesser nature of the offense, a Class 6 felony, and demonstrates a legislative intent to prohibit conduct that also has the potential of endangering a child's life." Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004).
Appellant here argues that there is no evidence, other than her intoxication, to show criminal negligence. She points out that she committed no other traffic violations while in the parking lot. Appellant stresses that she drove slowly for only a short distance, appropriately stopping at a stop sign, and never entering the highway. In short, she reasons that without more than intoxication, her conduct did not constitute felony child neglect.
Appellant focuses narrowly on her driving within the parking lot. Her argument ignores the totality of the circumstances, specifically, her high level of intoxication that prevented her from providing the necessary supervision and protection incumbent upon a parent of young children. See Barrett v. Commonwealth, 268 Va. 170, 186, 597 S.E.2d 104, 112 (2004) (discussing that a parent owes a duty of protection to a young child). Her argument also disregards that she drove to the parking lot in that intoxicated condition.
In Morris, the mother of two small children fell into a very deep sleep in the middle of the day. Before falling asleep she "double-locked" her trailer door in an effort to keep her children from wandering outside, which they had done on previous occasions. 272 Va. at 740, 636 S.E.2d at 440. However, the children, ages five and two, wandered outside and had to be returned to their home by police officers. Id. at 735, 636 S.E.2d at 437. The Court found that the mother's conduct did not amount to a "willful act or omission in the care of her children that was so gross, wanton, and culpable as to show a reckless disregard for their lives." Id. at 740, 636 S.E.2d at 440. The Court noted that the mother had locked the door to her home in an effort to prevent the children from wandering. Additionally, the Court found that although the mother was in a very sound sleep there was no evidence to "indicate that Morris was under the influence of alcohol or drugs on that day." Id. Such is not the case here.
Unlike the facts in Morris, this record clearly shows that appellant had consumed a significant amount of alcohol, had ingested a sleep-inducing drug, and as a result was severely impaired. Also in Morris, the mother took steps to keep her children secure in a familiar environment. Here, appellant removed her children from the safety of their home and brought them to a potentially unsafe and unfamiliar place while unable to protect them.
In Barrett, a ten-month-old infant drowned when his two-year-old sister placed him in a bathtub. The evidence established that Barrett knew that her daughter had a "propensity for attempting to injure [him]." Barrett, 268 Va. at 184, 597 S.E.2d at 111. Barrett also knew that her daughter liked to play in the bathtub and was able to operate the tub's faucets by herself. In addition, Barrett knew that, shortly before the infant's death, when she had left her daughter unattended in the bathtub, her daughter had pulled the infant "head first" into the bathtub. Id. at 185, 597 S.E.2d at 111-12. The Court explained that Barrett "created a situation `reasonably calculated to produce injury, or which [made] it not improbable that injury [would] be occasioned, and [she knew], or [was] charged with the knowledge of, the probable results of [her] acts.'" Id. at 184, 597 S.E.2d at 111 (quoting Cable, 243 Va. at 240, 415 S.E.2d at 220).
In explaining that Barrett failed in her duty to protect her children, the Court made clear that the evidence revealed "the story of a disaster just waiting to happen, a disaster any reasonable person would consider likely to result in injury to [the children]." Id. at 185, 597 S.E.2d at 112.
Here, while in a semi-conscious state, appellant took her children out of the shelter of their home and drove to a public parking lot surrounded by moving vehicles and strangers. Although the children were belted into safety seats, they were nevertheless exposed to danger, as demonstrated by the young boy's ability to open and shut the back door. Appellant's bizarre behavior demonstrated that she was unable to protect and supervise her children. She was not sufficiently alert to accomplish even the simple task of quickly locating her wallet. Appellant's belligerent attitude toward the police further indicated her lack of control and judgment. As the trial court concluded, appellant's degree of impairment left her unable to "use her mature judgment that we consider necessary for parents of small children."
The dangers in neglecting one's supervisory duties are obvious. Virginia appellate courts have on several occasions affirmed convictions of felony neglect by underscoring the helplessness and vulnerability of the victims. See Davis v. Commonwealth, 230 Va. 201, 206, 335 S.E.2d 375, 379 (1985) (affirming an involuntary manslaughter conviction based upon criminal negligence for the failure to care for a senile and completely disabled elderly woman); Bean-Brewer v. Commonwealth, 49 Va.App. 3, 17, 635 S.E.2d 680, 687 (2006) (affirming conviction of a licensed child care provider who failed to adequately supervise an eight-year-old child and a ten-month-old baby); Kelly v. Commonwealth, 42 Va.App. 347, 356, 592 S.E.2d 353, 358 (2004) (characterizing a twenty-one-month-old infant who was left inside a car strapped into a child safety seat as "helpless"); cf. Ferguson v. Commonwealth, 51 Va.App. 427, 439, 658 S.E.2d 692, 698 (2008) (reversing a conviction of child felony neglect where the victim was required to stand outside in the winter cold, but was seventeen years old, appropriately dressed, and had free access to interior of a warm building).
We underscore at this point appellant's high level of intoxication. This alone justifies a finding of gross, wanton, and culpable conduct. Stevens v. Commonwealth, 272 Va. 481, 488, 634 S.E.2d 305, 310 (2006), cited with approval in Riley, 277 Va. at 484, 675 S.E.2d at 178. Although the Stevens Court pointed out additional aggravating conduct by Stevens, the Court reached the inescapable conclusion that alcohol alone can support such a finding. Id. "Again, we focus upon Stevens' high level of intoxication, approximately three times the legal limit. This alone justifies a finding that Stevens' conduct was gross, wanton, and culpable." Id.
We are not persuaded by appellant's reliance on Bishop v. Common-wealth, 20 Va.App. 206, 455 S.E.2d 765 (1995), for the contention that intoxication is not, by itself, criminal negligence. In Bishop, appellant contended that his driving after having been declared a habitual offender was a misdemeanor rather than a felony because the Commonwealth did not present any evidence that he drove in a dangerous manner. Because the manner of driving and not the level of intoxication elevates the offense to a felony pursuant to the habitual offender statute, this Court concluded that the evidence of intoxication failed to prove that Bishop's "driving, of itself . . . endangered] the life, limb, or property of another." Id. at 212, 455 S.E.2d at 768.
In this case, Dr. Edinboro testified that an individual at appellant's intoxication level would experience "the loss of all critical judgment" and that one's perception would be negatively impacted. He also testified that one would suffer an inability to control actions and behaviors and that the brain would be starting to go to sleep. Appellant exhibited all these impairments.
As previously discussed, this case has several aggravating factors beyond appellant's intoxication. Appellant had ingested Ambien, a "hypnotic drug" that is "given for the primary purpose of causing and inducing sleep." Appellant was functioning poorly, having been observed slumped over in her seat, making the incongruous statement that "[w]e're just pretending," and found sucking on a rag. She remained in a semi-conscious state while in the parking lot for over thirty minutes, prompting concerned strangers to call 911. During this period her children were essentially unattended and vulnerable to outside dangers. Based on the evidence presented, the dangers inherent in such a situation could be inferred by the fact finder as a matter of common knowledge. Duncan, 267 Va. at 386, 593 S.E.2d at 215.
A reasonable fact finder could infer, based on common knowledge, that appellant knew or should have known that there were inherent dangers in transporting her children to a public place while being so impaired as to lose judgment, motor skills, and reason. See id. In addition, Sergeant Russell testified that he saw no alcohol in the car, and we find no evidence in the record that appellant had consumed the intoxicants while in the parking lot. By her statement to the police that she had wine with lunch, the trial court could infer that appellant had consumed alcohol before driving to the parking lot. See Rollston v. Commonwealth, 11 Va.App. 535, 547, 399 S.E.2d 823, 830 (1991) (discussing that the trier of fact is not required to accept a witness' testimony, but instead is free to "rely on it in whole, in part, or reject it completely"). Therefore, from the trial court's declaration that appellant "intentionally drove in the car after drinking alcohol and taking the Ambien," we find the court reasonably concluded that appellant drove to the parking lot in her highly inebriated and impaired condition with her children in the car. Viewing the evidence in the totality of the circumstances, appellant, as the sole adult responsible for the welfare of the children, "created a situation `reasonably calculated to produce injury, or which [made] it not improbable that injury [would] be occasioned, and [she knew], or [was] charged with the knowledge of, the probable results of [her] acts.'" Barrett, 268 Va. at 184, 597 S.E.2d at 111 (quoting Cable, 243 Va. at 240, 415 S.E.2d at 220).
Appellant's Statement Regarding Future Conduct
Appellant contends the trial court erred in convicting appellant of felony child neglect because it relied on future conduct, i.e., her intent to drive out of the parking lot. Appellant argues that Code § 18.2-371.1 contemplates current or past actions, but not future conduct. The Commonwealth responds that this argument is waived pursuant to Rule 5A:18.
[15,16] Rule 5A:18 is clear that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling " Indeed, "[i]n order to preserve an issue for appeal, `an objection must be timely made and the grounds stated with specificity.'" McDuffie v. Commonwealth 49 Va.App. 170, 177, 638 S.E.2d 139, 142 (2006) (quoting Marlowe v. Commonwealth, 2 Va.App. 619, 621, 347 S.E.2d 167, 168 (1986)). The purpose of the rule is to ensure that any perceived error by the trial court is "promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. . . . Errors can usually be corrected in the trial court, particularly in a bench trial, without the necessity of appeal." Brown v. Commonwealth, 8 Va.App. 126, 131, 380 S.E.2d 8, 10 (1989). If a party fails to timely and specifically object, she waives her argument on appeal. Arrington v. Commonwealth, 53 Va.App. 635, 641, 674 S.E.2d 554, 557 (2009).
Rule 5A:18 was amended effective July 1, 2010 to state in relevant part that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated with reasonable certainty at the time of the ruling . . . ."
At trial, the Commonwealth introduced evidence that appellant told Officer Russell that she was on her way to collect another child from school. Appellant objected to the statement on the basis that "it is not relevant to her conduct in the parking lot, that what she's going to do in the future has nothing to do with . . . not probative of felony child neglect." We find this objection specific and timely, and we will address appellant's argument here.
Appellant claims the trial court convicted appellant because it was probable that the children would suffer injury when she drove out of the parking lot to the school. She also argues the trial court improperly considered her statement concerning her future driving because such a statement is not relevant to the "willfulness" element of the felony child endangerment charges. Finally, she maintains the court erred in finding her guilty based solely upon that statement. Because these arguments are interrelated, we will address them simultaneously.
The trial court admitted the statement as relevant evidence to show appellant's willfulness. Because willful conduct must be knowing or intentional, rather than accidental, our inquiry is whether the statement is relevant to show appellant's state of mind, or intent. See Barrett, 268 Va. at 183, 597 S.E.2d at 111.
[19-23] It is well settled that "[t]he admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." James v. Commonwealth, 18 Va.App. 746, 753, 446 S.E.2d 900, 904 (1994). Generally, "[e]vidence is admissible if it is both relevant and material," and it is inadmissible if it fails to satisfy these criteria. Evans-Smith v. Commonwealth, 5 Va.App. 188, 196, 198, 361 S.E.2d 436, 441, 442 (1987). "Evidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case." Ragland v. Commonwealth, 16 Va.App. 913, 918, 434 S.E.2d 675, 678 (1993). "Evidence is material if it relates to a matter properly at issue." Evans-Smith, 5 Va.App. at 196, 361 S.E.2d at 441.
From the outset, we note that appellant's argument is based upon the faulty premise that the trial court viewed appellant's statement of her present intent to drive to the school as a future act or omission. Appellant's statement simply demonstrated her level of impairment in not comprehending the inherent dangers of driving while in her semi-conscious condition. The present act or omission is her inebriated condition that manifested itself in her lack of critical judgment. Her statement clearly proved that she did not recognize the danger to which she was currently exposing her children and underscored her inability to reason by believing that she was in a position to responsibly care for her children. We find the trial court properly considered this statement for the purpose of showing appellant's state of mind.
We disagree with appellant's contention that the trial court convicted her based upon her statement of intended future conduct. To do so, in view of the totality of the record here presented, would be to "`fix upon isolated statements of the trial judge taken out of the full context in which they were made,'" which we will not do. Bly v. Commonwealth, 55 Va.App. 1, 13, 682 S.E.2d 556, 562 (2009) (quoting Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977)). While we acknowledge that the court referred to the probability that the children would be in danger if appellant drove off the lot, we find the record overwhelmingly shows appellant's disregard for her children's welfare without consideration of this additional factor.
When an appellant challenges on appeal the sufficiency of the evidence to sustain her conviction, the appellate court has a duty to examine all the evidence that tends to support the conviction. Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005). This examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling. In determining whether there is evidence to sustain a conviction, an appellate court must consider all the evidence admitted at trial that is contained in the record. Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008).
We evaluate the totality of the trial court's statement and do not isolate any individual comment. Here, the court properly appraised all the evidence and found that appellant was highly intoxicated on alcohol and Ambien, drove to the parking lot in a semi-conscious, impaired condition, and "did not have the ability to control her motor skills and use her mature judgment." The court concluded, "with all of these circumstances, it seems to me that it's very clear that [appellant's] conduct created a probability of injury or death to the children." Thus, while the court commented on appellant's intent to drive out of the parking lot, the record clearly demonstrates that the court considered all the facts and circumstances surrounding appellant's behavior and convicted appellant based upon the totality of the circumstances.
Ambien
Appellant contends the trial court erred in finding she intentionally ingested Ambien with knowledge of the effects of the medication. The evidence is undisputed that Dr. Edinboro analyzed a sample of appellant's blood and determined that she had ingested the prescription drug Ambien. She maintains that because she told police that she had taken the Paxil, the evidence showed that she must have taken the Ambien by accident. The trial court rejected this argument.
"`Whether an alternate hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plainly wrong.'" Emerson v. Commonwealth, 43 Va.App. 263, 277, 597 S.E.2d 242, 249 (2004) (quoting Archer v. Commonwealth, 26 Va.App. 1, 12-13, 492 S.E.2d 826, 832 (1997)); see also Haskins v. Commonwealth, 44 Va.App. 1, 9, 602 S.E.2d 402, 406 (2004) (holding that where the factfinder has rejected the hypothesis of innocence, "that determination cannot be overturned as arbitrary unless no rational factfinder would have come to that conclusion").
The trial court was not required to accept the story appellant gave to the police. "The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995). In light of appellant's other false or irrational statements that afternoon, the trial court reasonably rejected appellant's claim that she ingested Ambien by mistake.
Appellant also suggests that even if she did have a valid prescription for Ambien, it is unreasonable that she would know all of the effects. The trial court was also free to reject this argument. By not believing appellant's statement that she thought she had taken Paxil, the trial court could reasonably conclude that appellant purposefully took Ambien knowing what effect it would have on her. Unlike other medications, drowsiness is not a side effect of Ambien; it is the purpose of taking the medication. It defies human experience that one who takes a sleeping pill would not know what effects that medication would have on their ability to drive. One need not read the printed warnings to know the effects of Ambien. The trial court did not err in finding appellant ingested Ambien knowing it would impair her ability to drive and supervise her children.
CONCLUSION
For the foregoing reasons, we find the trial court did not err in finding appellant guilty of felony child neglect. Accordingly, the judgment of the trial court is affirmed.
Affirmed.
-insurance-company-of-america-2#p377511 U.S. 375, 377 (1994). Their authority extends only to subject matter authorized by the Constitution or by statute.
Id. The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.
See id. A motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure will be granted if the complaint fails to allege grounds for federal subject-matter jurisdiction, as required by rule 8(a) of the Federal Rules of Civil Procedure.
See Warren v. Fox Family Worldwide, 328 F.3d 1136, 1139 (9th Cir. 2003). However, "jurisdictional dismissals in cases premised on federal-question jurisdiction are exceptional" and are permitted only when the claim is "patently without merit."
Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).
2. Rule 12(b)(6)
A complaint may be dismissed for failure to state a claim for which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6). "The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint." N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff's burden at the pleading stage is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that "[a] pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).
In ruling on a motion to dismiss under Rule 12, the court analyzes the complaint and takes "all allegations of material fact as true and construe(s) them in the lights most favorable to the non-moving party." Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that would support a valid theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint must "contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Bell Atl. Corp. v. Twombley, 127 S.ct. 1955, 1969 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). The factual allegations must be definite enough to "raise a right to relief above the speculative level." Id. at 1965. However, a complaint does not need detailed factual allegations to survive dismissal. Id. at 1964. Rather, a complaint need only include enough facts to state a claim that is "plausible on its face." Id. at 1974. That is, the pleadings must contain factual allegations "plausibly suggesting (not merely consistent with)" a right to relief. Id. at 1965 (noting that this requirement is consistent with Fed.R.Civ.P. 8(a)(2), which requires that the pleadings demonstrate that "the pleader is entitled to relief").
B. The LMRDA
Plaintiffs assert claims under Title I of the LMRDA, "which provides union members with an exhaustive `Bill of Rights' enforceable in federal courts." Local No. 82 v. Crowley, 467 U.S. 526, 536 (1984) (citing LMRDA §§ 101-105, 29 U.S. §§ 411-415). "Title I is designed to guarantee every union member equal rights to vote and otherwise participate in union decisions, freedom from unreasonable restrictions on speech and assembly, and protection from improper discipline." Id. at 536-537. Section 101(a)(1) is an anti-discrimination provision, providing as follows:
(a)(1) Equal rights
Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.
29 U.S.C. § 411(a)(1). In
Calhoon v. Harvey, the Supreme Court held that "this is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote."
379 U.S. 134, 139 (1964);
see also Ackley v. Western Conference of Teamsters,
958 F.2d 1463, 1472 (9th Cir. 1992) ("Section 101(a)(1) is an anti-discrimination provision pure and simple. To state a claim under Section 101(a)(1), a union member must allege a denial of rights accorded to other members").
In addition, Title I guarantees the right to freedom of speech and assembly, as follows:
2) Freedom of speech and assembly
Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligation.
29 U.S.C. § 411(a)(2). "The courts of appeal have construed section 101(a)(2) to provide a remedy not only for direct reprisals against dissenters, but also for union conduct that inhibits or threatens dissenting speech."
Ackley, 958 F.2d at 1475 (citing
Lodge 1380 v. Dennis, 625 F.2d 819, 827 (9th Cir. 1992)). To prevail under this provision, a plaintiff need not establish discrimination.
Lodge, 625 F.2d at 825 n. 7.
Enforcement of these provisions is governed by Section 102, which provides, in part, as follows:
Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.
29 U.S.C. § 412. In
Crowley, the Supreme Court noted that while Section 102, standing by itself, suggests "that individual union members may properly maintain a Title I suit whenever rights guaranteed by that Title have been violated," the use of the words "appropriate relief" in Section 102 explicitly limit the relief that the district court may order.
467 U.S. at 538. The Court explained that the enforcement and remedial provision of Title I should not be interpreted in isolation but rather, should be understood with reference to Title IV of the LMRDA.
Id. at 539. "Title IV . . . provides an elaborate postelection procedure aimed solely at protecting union democracy through free and democratic elections, with primary responsibility for enforcement lodged with the Secretary of
Labor."
Id. at 528. Thus, challenges to union elections that have already been conducted fall under Title IV's exclusivity provision,
29 U.S.C. § 483, which provides that "[t]he remedy provided by [Title IV] for challenging an election already conducted shall be exclusive." On the other hand, "[e]xisting rights and remedies to enforce the constitution and bylaws of a labor organization with respect to elections
prior to the conduct thereof shall not be affected by the provisions of [Title IV]."
Id. Finally, in
Crowley the Court addressed the jurisdiction of courts under Title I as to claims brought
in the course of a union election, holding that "[i]ndividual union members may properly allege violations of Title I that are easily remediable under that Title without substantially delaying or invalidating an ongoing election" but that "Congress did not consider court supervision of union elections to be an `appropriate' remedy for a Title I suit filed during the course of a union election."
467 U.S. at 546.
C. Whether Plaintiffs' Claim Under 29 U.S.C. § 411(a)(1) Fails Because Plaintiffs Are Not Members of a Cognizable Group
Defendant asserts that Plaintiffs fail to state a claim under § 411(a)(1) because this section is, in essence, an equal protection claim, which requires that a plaintiff asserting discrimination must be a member of a cognizable class. In support of its position Defendant cites a single case, Aulson v. Blanchard, 83 F.3d 1, 3-7 (1st Cir. 1996). The Court rejects Defendant's position because Aulson involved an equal protection challenge under 42 U.S.C. § 1985 and there is no authority to support Defendant's contention that the civil rights law that was applied in that case is applicable under Title I of the LMRDA. To the contrary, cases that address § 411(a)(1) indicate that under that provision, a plaintiff need not demonstrate membership in a cognizable class.
In Aulson, the plaintiff was a town selectman who alleged that he was a member of a political group who opposed members of an incumbent group of "old guard" politicians and that this "old guard" conspired against him in a variety of ways, including orchestrating illegal searches and sham prosecutions against him. 83 F.3d at 2. The plaintiff sued these individuals under 42 U.S.C. § 1985(3), which proscribes certain types of conspiracies to deprive a person of equal protection of the law. Id. The court dismissed the claim under Rule 12(b)(6) for failure to state a claim, citing the "gloss" placed on claims under § 1985(c) by the Supreme Court in Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), namely, that the alleged denial of equal protection that is the subject of the conspiracy must be "racial, or perhaps otherwise class-based, invidiously discriminatory animus." Id. That requirement, the court held, "loom[ed] as an insurmountable obstacle to the plaintiff's attempted embrace of § 1985(3)" because the plaintiff was required to show that the discrimination was a result of his membership in a cognizable class. Id. The court expressed skepticism as to whether a political group could ever constitute a cognizable class but held that even if it could, the plaintiff's allegations with respect to his membership in a group who opposed the old guard was too indeterminate to show a cognizable class. Id. at 5.
Defendant seeks to apply the holding of Aulson in this case based on the assertion that both involve "equal protection" claims. It fails to cite any authority, however, showing that membership in a cognizable class is required to state a claim under § 411(a)(1). Further, discussions of the legislative history strongly support the conclusion that Congress did not intend to impose such a requirement. In Finnegan v. Leu, the Supreme Court described the origins of the LMRDA as follows:
The Labor-Management Reporting and Disclosure Act of 1959 was the product of congressional concern with widespread abuses of power by union leadership. The relevant provisions of the Act had a history tracing back more than two decades in the evolution of the statutes relating to labor unions. Tensions between union leaders and the rank-and-file members and allegations of union wrongdoing led to extended congressional inquiry. As originally introduced, the legislation focused on disclosure requirements and the regulation of union trusteeships and elections. However, various amendments were adopted, all aimed at enlarged protection for members of unions paralleling certain rights guaranteed by the Federal Constitution; not surprisingly, these amendments-ultimately enacted as Title I of the Act,
29 U.S.C. §§ 411-415-were introduced under the title of "Bill of Rights of Members of Labor Organizations." . . . The amendments placed emphasis on the rights of union members to freedom of expression without fear of sanctions by the union, which in many instances could
mean loss of union membership and in turn loss of livelihood. Such protection was necessary to further the Act's primary objective of ensuring that unions would be democratically governed and responsive to the will of their memberships. See 105 Cong.Rec. 6471-6472, 6476, 15530 (1959), 2 Leg.Hist. 1098-1099, 1103, 1566.
456 U.S. 431, 435 (1982). The history of Title I makes clear that it was intended to protect the rights of union members to express opposition without fear of reprisals from union leadership. Were courts to apply to § 411(a)(1) the requirement that discrimination must be based on racial or
other class-based animus, they would essentially eviscerate the protection afforded by this provision.
In the absence of any authority suggesting that the discrimination that is prohibited under § 411(a)(1) must be based on membership in a cognizable class, the Court rejects Defendant's argument that Plaintiffs fail to state a claim as to this provision because they are not members of such a class.
The Court notes that in Ackley, discussed further below, the Ninth Circuit repeatedly emphasized that the plaintiff's claims, which alleged violations of § 411(a)(1) and (2) based on failure to provide rank and file members of the union with adequate information about a collective bargaining agreement that was subject to a ratification vote, were not based on allegations that they had been discriminated against. 958 F.2d at 1473 ("the union treated all members identically during the ratification process"; "the local union leaders furnished the same type and amount of information to all of the [members] and accorded them identical rights to speak at the ratification meetings"). Thus, the court implicitly acknowledged that had the union withheld information related to the collective bargaining agreement selectively based on opposition to the union leadership's position, they would have stated a claim under § 411(a)(1). Id.; see also O'Connor v. Local 719, 739 F. Supp. 1158, 1161 (N.D. Ill. 1990) ("[t]he only allegation in the complaint which could conceivably support a § 411 claim is the plaintiff's charge that union officials selectively notified only those union members who supported ratification").
D. Whether Plaintiffs' Claim Under 29 U.S.C. § 411(a)(2) Fails Under Ackley
Defendant asserts that Plaintiffs' complaint fails to state a claim under § 411(a)(2), citing the Ninth Circuit's holding in Ackley that the LMRDA does not create a right to vote on a contract proposal and does not require that union members be given "meaningful" information prior to voting on contract ratification. The Court concludes that Defendant is correct that many of the allegations in Plaintiffs' complaint fail to state a claim under § 411(a)(2) in light of Ackley. However, the Court concludes that some of the allegations in Plaintiffs' complaint fall outside of the Ackley holding and therefore, may not be dismissed under that case.
In Ackley, two union members sued the union under 29 U.S.C. § 411(a), claiming that the union's failure to disclose material changes in a negotiated collective bargaining agreement prior to the ratification vote violated the equal voting rights and freedoms of § 411(a). 958 F.2d at 1468. The evidence showed that while there had been no discrimination with respect to the amount of information provided to union members prior to the ratification vote, the summary of the collective bargaining agreement that was read to the membership failed to disclose some material changes in the collective bargaining agreement. Id. at 1468. The plaintiffs initially sought rescission of the collective bargaining agreement and an injunction regarding the conduct of future ratification votes but later abandoned their claim to rescission in favor of a request for declaratory judgment. Id. The district court dismissed the plaintiff's claims after a bench trial and the plaintiffs appealed. Id.
The court of appeals held that because there was no evidence of discrimination, the plaintiffs' claims failed under § 411(a)(1). Id. The court reasoned that although union members were not given the same information as was available to the union leaders who were negotiating the agreement, all rank-and-file members were given the same information and the same right to speak. Id. at 1473-1474. The court rejected the plaintiffs' assertion that the union had violated § 411(a)() by presenting the agreement to the membership in the most favorable light, stating that "section 101(a)(1) prohibits discrimination against people, not ideas." Id. at 1474.
The court went on to address the right to freedom of expression under § 411(a)(2). The court held that even though unions may be required to provide sufficient information to allow members to exercise a statutory right to vote to do so in a meaningful way, for instance, in the case of union elections, that requirement does not extend to voting as to which members do not have a statutory right to vote, such as the ratification of collective bargaining agreements. Id. at 1475. The court concluded,
it is the breach of the union's internal rules that must serve as the basis for any complaint that insufficient information was provided to the membership prior to or at the time of ratification of a contract. Section 101(a) of the LMRDA affords no remedy for such a breach.
Id. at 1476. The Court noted, however, that § 411(a)(2) has been construed broadly "to provide a remedy not only for direct reprisals against dissenters, but also for union conduct that inhibits or threatens dissenting speech.
Id. at 1475 (citing
Lodge, 625 F.2d at 827). It made clear that its holding rested in part on the fact that there was no evidence of such conduct:
[Plaintiffs] have made no showing that they or any of their fellow union members were denied the opportunity to express their views about the proposed collective bargaining agreement, or discouraged from asking questions about its provisions during the ratification meetings.
Id.
Finally, having concluded that the plaintiffs' claims under the LMRDA failed, the court explained that its decision did "not leave union members without rights in contract ratification cases, nor does it deprive them of a federal remedy for a union's failure to abide by the rules governing the ratification process." Id. at 1476. The court continued,
If the union's constitution or bylaws affords members the right to ratify a labor-management contract — and almost all do-that right is protected by federal law. However, the federal law that applies is of a different character than the LMRDA. Section 301(a) of the LMRA authorizes the federal courts to hear "[s]uits for violation of contracts between an employer and a labor organization . . . or between any such labor organizations."
29 U.S.C. § 185(a) (1988). A union constitution is considered a contract between the union and its members, and a member or members may sue the union under section 301(a) for breach of that contract.
Wooddell v. International Bhd. of Elec. Workers, 502 U.S. 93,
112 S.Ct. 494, 499,
116 L.Ed.2d 419 (1991);
United Ass'n of Journeymen v. Local 334, 452 U.S. 615, 619-27,
101 S.Ct. 2546, 2549-53,
69 L.Ed.2d 280 (1981);
Kinney v. International Bhd. of Elec. Workers, 669 F.2d 1222, 1229 (9th Cir. 1981). Unless union members allege a denial or infringement of a specific
right provided them in the LMRDA, it is this federal statutory remedy that they must pursue when they contend that rights guaranteed them by their union's constitution or bylaws have been infringed.
Id. at 1477.
Ackley teaches that much of the conduct alleged by Plaintiffs in this action falls outside the ambit of § 411(a)(2). In particular, allegations that the union leadership did not provide adequate information for its members to make an informed decision, did not adequately publicize the place and time of the ratification vote and framed the choice in a manner that discouraged members from opposing ratification are not actionable under § 411(a)(2). On the other hand, to the extent that Plaintiffs seek to assert a claim under this section based on allegations that the union leadership intentionally and selectively prevented certain union members, on the basis of their opposition to the collective bargaining agreement, from expressing their opinions during the ratification process and threatened or retaliated against them for continuing to speak out against the collective bargaining agreement, Plaintiffs' allegations may be sufficient to state a claim under this provision. See Schermerhorn v. Hall, 1995 WL 608304 (S.D.N.Y., August 17, 1995 (holding that union had violate § 411(a)(2) and awarding declaratory relief, attorneys' fees and nominal damages where jury found that union officials had retaliated against members as part of scheme to suppress speech in connection with ratification vote by bringing disciplinary charges against them and by taking other actions that were aimed at suppressing speech, including posting notices cancelling a special meeting that plaintiffs called in accordance with union rules).
E. Whether Plaintiffs State a Claim Pursuant to 29 U.S.C. § 529
Defendant argues that the conduct alleged in Plaintiffs' complaint fails to state a claim under 29 U.S.C. § 529 because that section applies only to punishment that is authorized by the union to enforce its rules. The Court agrees.
Section 529 provides, in relevant part, as follows:
It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter.
29 U.S.C. § 529. In using the term "otherwise discipline," "Congress did not intend to include all acts that deterred the exercise of rights protected under the LMRDA but meant instead to denote only punishment authorized by the union as a collective entity to enforce its rules."
Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 91 (1989). Plaintiffs have alleged no such conduct in this case.
F. Whether Plaintiffs State a Claim Pursuant to 29 U.S.C. § 530
Defendant argues that Plaintiffs also fail to state a claim under 29 U.S.C. § 530, and the Court agrees. Section 530 provides as follows:
It shall be unlawful for any person through the use of force or violence, or threat of the use of force or violence, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any member of a labor organization for the purpose of interfering with or preventing the exercise of any right to which he is entitled under the provisions
of this chapter. Any person who willfully violates this section shall be fined not more than $1,000 or imprisoned for not more than one year, or both.
29 U.S.C. § 530. Section 530 does not give rise to a private cause of action.
Moore v. Local 569 of Intern. Broth. of Elec. Workers, 653 F.Supp. 767, 774-775 (S.D.Cal., 1987). Therefore, Plaintiffs fail to state a claim under this provision.
G. Whether Plaintiffs' Claims Fail Because Allegations in the FAC Are Otherwise Insufficient
Because the Court finds, for the reasons stated above, that Plaintiffs may have viable claims under § 411(a) and(2), it rejects Defendant's assertion that the complaint should be dismissed under Rule 12(b)(1), for lack of subject matter jurisdiction, on the basis that it is "wholly insubstantial and frivolous." Nonetheless, many of Plaintiffs' factual allegations do not support claims under these provisions because they are too conclusory and/or fail to allege key elements. Below, the Court addresses the sufficiency of Plaintiffs' allegations as to each form of misconduct alleged in the FAC.
Withholding of information prior to vote: In ¶¶ 25-29 of the FAC, Plaintiffs allege that the Union leadership intentionally "control[led] the dissemination of information and participation" by informing only members who supported the CBA of its contents while purposely failing to provide copies of the CBA and denying Spanish language copies of the CBA to Plaintiffs because they were perceived to oppose it. As discussed above, the union is not required to ensure that members are fully informed about the contents of a collective bargaining agreement so long as all members are treated equally. Nor is the union required to provide copies to its members of a collective bargaining agreement before it has been ratified. Similarly, the allegation that the union failed to provide a Spanish language version prior to the vote does not, by itself, support a claim under the LMRDA because Plaintiffs do not allege that copies were provided to members in any other language. However, to the extent that Plaintiffs allege that they were selectively denied information on the basis that they opposed to the collective bargaining agreement and that members who supported the collective bargaining agreement were given more information about its contents, Plaintiffs state a claim for discrimination under § 411(a)(1).
Under the LMRDA, unions are required to provide their members with copies of a collective bargaining agreement once it has been signed. 29 U.S.C. § 414; see also Summerville v. Local 77, 369 F.Supp.2d 648, 658-659 (M.D.N.C., 2005).
Failure to publicize ratification vote: In ¶¶ 30 and 41 of the FAC Plaintiffs allege that no real effort was made to inform members that a ratification vote was to be held on October 25, 2008 and there was a clear effort not to inform members who were perceived as opposing the CBA of the vote; as a result, many members, including Plaintiff Suarez, did not know the vote was going to occur and only 20% of the membership appeared for the vote. Under Ackley, the LMRDA does not impose a requirement that the union publicize a ratification vote in any particular manner, even if union rules might contain such a requirement. Thus, this allegation could only potentially state a discrimination claim under § 411(a)(1) on the basis of the allegation that there was an effort not to inform those who opposed the collective bargaining agreement. However, Plaintiffs fail to directly allege that other union members were provided more information than they were; nor do they allege any specific facts showing that they were singled out in any particular way with respect to the information provided. Therefore, the Court concludes that these allegations are insufficient to support claims under either § 411(a)(1) or (2).
Choice offered on ratification: Plaintiffs allege in ¶ 31 of the FAC that the ratification vote required the membership to choose "between a `Yes' vote or a `No' vote that also meant a strike [whereas] [i]t should have been a choice between `Yes' to the contract and `No' only." Id., ¶ 31. This was allegedly intended to mislead the membership and deprived members of the opportunity to vote against the CBA. In Ackley, the Ninth Circuit held that a similar claim failed under both § 411(a)(1) and § 411(a)(2). These allegations fail to state an LMRDA claim.
Stuffing of ballot boxes: Plaintiffs allege in ¶ 32 of the FAC that they witnessed ballot boxes being stuffed, with some people who voted on October 25, 2008 being given more than one ballot, leading them to believe that these individuals voted twice. Allowing some members to vote twice while allowing Plaintiffs to vote only once amounts to discrimination and therefore states a claim under § 411(a)(1). See Kapau v. Yamamoto, 622 F.2d 449, 456 (9th Cir. 1980) (holding that union decision after election that one of the candidates was ineligible was discriminatory because it was akin to stuffing the ballot box), reversed, in part, on other grounds in Crowley, 467 U.S. at 536.
Conduct Related to October 25, 2008 Ratification Vote: In ¶¶ 33-38 of the First Amended Complaint, Plaintiffs allege that they and others who wished to asked questions about the CBA were not given an opportunity to do so and that those who were perceived to be opposed were not given a microphone or were removed from the proceedings. Id., ¶ 33. For example, Plaintiff Rodriguez was physically removed from the assembly and therefore was not given the opportunity to vote. Id., ¶ 34. Plaintiffs Azevedo, Martinez and Garcia did not vote because they had not received sufficient information about the CBA to make a meaningful choice. Id., ¶¶ 35-36, 38. As discussed above, in Ackley the Ninth Circuit acknowledged that § 411(a)(2) provides a remedy for "union conduct that inhibits or threatens dissenting speech" and noted that in that case, the plaintiffs' claims failed, in part, because the plaintiffs "made no showing that they or any of their fellow union members were denied the opportunity to express their views about the proposed collective bargaining agreement, or discouraged from asking questions during the ratification meetings." 958 F.2d 1463. To the extent that Plaintiffs here allege that they were denied the opportunity to express their views because they opposed the collective bargaining agreement, they have stated a claim under § 411(a)(2). However, the allegation that some of the plaintiffs were unable to make a meaningful choice because of insufficient information fails to state a claim under § 411(a)(2) in light of Ackley. Retaliation After Collective Bargaining Agreement Was Ratified: Plaintiffs allege in ¶¶ 47-49 of the FAC that they have been subjected to various forms of retaliation for their actions relating to the ratification of the CBA. As noted above, § 411(a)(2) prohibits reprisals against dissenting speech. See Lodge, 625 F.2d at 827; see also Cotter v. Owens, 753 F.2d 223, 229 (2d Cir. 1985) (holding that a union member may establish a violation of 29 U.S.C. § 411(a)(2) even based on an otherwise lawful act by a union official if the complained of act was "part of a series of oppressive acts by the union leadership that directly threatens the freedom of members to speak out"). To the extent that Plaintiffs allege that the union has retaliated against them for opposing the collective bargaining agreement and for pursuing internal remedies and then litigation to protect their rights, Plaintiffs state a claim under § 411(a)(2). The Court notes, however, that the allegation that Plaintiff Loaiza lost her job due to retaliation is too conclusory to support a claim under the LMRDA because Plaintiffs have alleged no facts relating to Ms. Loaiza's employment that would an inference to be drawn linking her expression of dissident speech with respect to the collective bargaining agreement to the loss of employment.
H. Whether Plaintiffs' Complaint Should be Dismissed Because Requested Relief is Unavailable
Defendant contends that Plaintiffs' complaint should be dismissed, in its entirety, because Plaintiffs seek relief that is not available under the LMRDA, namely, an injunction invalidating the collective bargaining agreement and scheduling a new election, as well as removing certain union officials from office. The Court concludes that Defendant is correct that the Court may not invalidate the collective bargaining agreement, at least under the facts alleged here. However, the Court rejects Defendant's assertion that Plaintiffs' complaint should be dismissed, in its entirety, because no relief is available.
1. Whether the Court Has Authority Under the LMRDA to Invalidate Collective Bargaining Agreement
The district court's jurisdiction under the LMRDA is set forth in 29 U.S.C. § 412, which provides as follows:
Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.
28 U.S.C. § 412. As discussed above, Courts have found that this provision must be construed in light of Title IV, which preempts the district court's authority with respect to actions that challenge union elections in cases where the challenge is brought after the election has occurred. Defendant does not contend that the Court's authority is preempted under Title IV and the Court agrees. The ratification vote that Plaintiffs challenge here is not an election for the selection of union officers and therefore is outside of the purview of Title IV. Instead, Defendant cites two cases that involve section 301 of the NLRA, prohibiting unfair labor practices, including unfair representation in connection with collective bargaining agreements.
See Motion at 17-18 (citing
Goclowski v. Penn Cent. Transp. Co., 571 F.2d 747, 760 (3d Cir. 1977);
Battle v. Clark Equipment Co., 579 F.2d 1338, 1349 (7
th Cir. 1978)).
In Goclowski, plaintiffs were railroad employees who sued the union under the Railway Labor Act, 45 U.S.C. §§ 151 et seq., and the employer on a breach of contract theory claiming that an agreement negotiated by the union that deprived the plaintiffs of their seniority was unauthorized because it was not properly ratified by the union membership. 571 F.2d at 751-752. The plaintiffs sought damages and to invalidate the agreement based, in part, on the fact that it was not properly ratified by the affected union members. Id. at 753 n. 2. The court held that it had jurisdiction to address the invalidation claim because it did not require the interpretation of a collective bargaining agreement but rather, involved "a simple contractual principle attacking the formation of a contract" and therefore was not subject to binding interpretation by the Railroad Adjustment Board. Id. at 755.
The court in Goclowski went on to address whether the agreement could be invalidated on the basis of the union's failure to obtain ratification by its members. Id. at 756. The court acknowledged that "[i]t is a basic principle of labor law that the employer is required to deal and enter into contracts with the duly designated bargaining representatives of its employees," noting that under the Railway Labor Act, "[t]he duly designated representative of railroad employees has statutory authority . . . to make agreements binding upon them with respect to wages, rules, and other working conditions." Id. at 759 (citations omitted). Because of this principle, the court explained, courts have held that "the unilateral failure of a union to follow its own rules was an insufficient basis to invalidate the agreement entered into by the union with the employer." Id. at 759 (citing Kline v. Florida Airlines, Inc., 496 F.2d 919 (5th Cir. 1974). The court found, however, that there was evidence from which a reasonable inference could be drawn that the employer had knowledge that the union entered into the agreement without authority. Id. Accordingly, the court held that there was a "substantial factual question . . . as to whether the agreement itself [was] invalid for failure to obtain ratification." Id.
In Battle, as in Goclowski, plaintiffs were union employees who challenged an agreement between the union and their employer on the basis that the union did not obtain proper ratification of the agreement by union members. 579 F.2d 1338, 1340-1342. The plaintiffs sued the union for breach of the duty of fair representation under the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), and the employer for breach of contract. Id. The district court found that the claim against the union failed on summary judgment because the plaintiffs failed to exhaust their internal remedies, as required under the LMRA, and because there was no evidence that the union engaged in any bad faith conduct. Id, at 1342. It then addressed whether the employer could be held liable for monetary damages on the theory that the employer acquiesced in wrongdoing on the part of the union in obtaining ratification signatures, including providing inadequate information about the agreement, ruling out of order and threatening to remove members who sought to speak out against it at a union meeting, and obtaining signatures from members through fraudulent means. Id. at 1348. The court concluded that although there were fact questions as to whether the union engaged in misconduct, the employer was, nonetheless, entitled to summary judgment because there was no evidence that the employer's reliance on the union's authority was not in good faith. Id. at 1349. The court reasoned, "[w]e do not believe that in enacting Section 301(a) Congress intended to permit the awarding of retroactive monetary relief against an employer whose only fault has been to rely in good faith on the representations of the union leaders that the union membership had properly ratified the [agreement]." Id. Goclowski and Battle stand for the proposition that under federal labor law, consistent with widely accepted common law principles of contract and agency, an agreement entered into by a union on behalf of its members will be valid and binding so long as the employer reasonably believes that the union is authorized to enter into such an agreement. Here, there are no allegations that the employers who entered into the collective bargaining agreement with Local 87 acted in bad faith in relying on the union's apparent authority to enter into the collective bargaining agreement. Indeed, the employers are not named as defendants in this action. In the absence of any allegation that the employers were aware of the alleged defects in the ratification process, there are no claims in Plaintiffs' complaint that could give rise to an order invalidating the collective bargaining agreement. In reaching this conclusion, the Court is cognizant of the fact that neither of the cases cited by Defendant involves a request for injunctive relief invalidating a collective bargaining
agreement under the LMRDA, leaving open the possibility that under § 412, broader injunctive relief might be available than is available under the labor laws at issue in Battle and Goclowski. The Court has found no authority suggesting, however, that in enacting the LMRDA Congress intended to afford remedies that go beyond those available under common law and established federal labor law with respect to the invalidation of a collective bargaining agreement. Therefore, the Court concludes that under the facts alleged in the First Amended Complaint, the remedy requested by Plaintiffs as to the invalidation of the collective bargaining agreement and scheduling of a new ratification vote is not available.
2. Whether the Action Should be Dismissed on the Basis that None of the Remedies Requested by Plaintiffs are Available
Although the Court finds that invalidation of the collective bargaining agreement is not an available remedy in this case, it rejects Defendant's assertion that the complaint should be dismissed in its entirety on the basis that no relief sought by Plaintiffs is available. First, Defendant has not established as a matter of law that Plaintiffs' request for removal of certain union officers from their positions is unavailable. Second, the Court concludes that it is not required to dismiss Plaintiffs complaint on the basis of the relief sought in it so long as some relief can be granted.
a. Removal of Union Officers
Although Defendant states in a caption of the Motion that the Court does not have authority under the LMRDA to remove elected union officers from their positions, Defendant does not address that issue in the body of its argument. See Motion at 17-18. Rather, the argument in that section is confined to the question of whether the Court has the authority to invalidate the collective bargaining agreement in this case. The only argument Defendant makes as to the removal of the officers is found in the Reply brief, in which Defendant asserts that the request for the officers' removal is moot because they were recently reelected and therefore, the Court can grant no effective relief. The Court is not persuaded by Defendant's argument.
In support of its assertion that the request for removal is moot, Defendant cites Canez v. Guerrero, 707 F.2d 443, 446 (9th Cir. 1983). In Canez, the Ninth Circuit addressed whether an appeal relating to injunctions issued by the district court under the LMRDA in connection with union elections was rendered moot because the elections had already occurred. 707 F.3d at 446. The court found that it was because the injunctions that were challenged had been entered to protect the right to freedom of expression of a dissident group and because the appellants who challenged the injunctions had prevailed over the dissidents in the election. Id. The court of appeals reasoned that because the terms of the injunctions were limited to the elections that had already occurred and did not apply to future elections, no further relief was available to the appellants. Id. The court further noted that the circumstances of the case did not fall within the exception to the mootness doctrine for harms that are capable of repetition but evading review, rejecting the assertion that it should decide the appeal on the merits because otherwise dissident groups would be more likely to seek injunction relief under the LMRDA to delay union elections. Id. Canez is not on point. Plaintiffs in this case object to actions that they say gave rise to ratification of a collective bargaining agreement that has affected their benefits and to ongoing retaliation on the part of certain union officers. To the extent that the removal of an elected union officer is an available remedy under the LMRDA — a question that neither party has briefed — the election that occurred in October 2010 does not have any bearing on Plaintiffs' requested relief, which is not based on a theory that these officers hold their positions by virtue of some previous, tainted election. Further, the Court notes that in Canez, the court's holding was based, in large part, on the fact that the party that challenged the injunctions had prevailed in the election despite the injunctions.
In contrast, in Ackley the court of appeals rejected the union's argument that the appeal was moot because the plaintiff's had abandoned their rescission claim. 958 F.2d at 1468. The court explained that the plaintiffs' claims were capable of repetition but evaded review because "when procedural wrongs involving the ratification process are alleged . . . [t]he relevant time period to be considered . . . is the duration of the ratification process itself." Id. Because that time period is only a few months, the court held, it is too short to allow for judicial review. Id. Further, because it was likely that future ratification votes would be conducted in the same manner, the challenges raised were not moot. Id. Finally, the court noted that in order to demonstrate the a case is moot, the burden is on the defendant to show that the alleged wrong will not recur. Id.
The Court concludes that Plaintiffs' claims are not moot.
b. Whether Dismissal is Appropriate Because Relief Sought by Plaintiffs is Unavailable
Defendant argues that none of the remedies requested by Plaintiffs are available under the LMRDA, implying that the Court should dismiss Plaintiffs' claims on this basis. Defendant does not, however, cite authority addressing whether it is appropriate to dismiss a complaint under Rule 12(b)(6) on the basis that the remedies sought in it are unavailable. The Court concludes that it is not, so long as some relief is available. In Massey v. Banning Unified School Dist., 256 F.Supp.2d 1090, 1092 (C.D.Cal., 2003), the court explained:
a Rule 12(b)(6) motion "will not be granted merely because [a] plaintiff requests a remedy to which he or she is not entitled." William W Schwarzer, et al., Civil Procedure Before Trial § 9:230. "It need not appear that plaintiff can obtain the specific relief demanded as long as the court can ascertain from the face of the complaint that some relief can be granted."
Doe v. United States Dept. of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985);
see also Doss v. South Central Bell Telephone Co., 834 F.2d 421, 425 (5th Cir. 1987) (demand for improper
remedy not fatal if claim shows plaintiff entitled to different form of relief).
Id. Here, Defendant has not shown that Plaintiffs could not be afforded some form of relief, even if the specific relief requested in the FAC is not available. Therefore, the Court declines to dismiss Plaintiffs' FAC on the basis of the remedies requested in it.
I. Motion for More Definite Statement under Rule 12(e)
Defendant asserts that even if the Court denies the motion to dismiss under Rule 12(b)(6), it should order Plaintiffs to provide a more definite statement under Rule 12(e) to clarify the factual basis for each claim asserted in the FAC. Pursuant to Rule 12(e), "[a] party may move for a more definite statement of a pleading . . . which is so vague or ambiguous that the party cannot reasonably prepare a response." That standard is not met here. Therefore, Defendant's request is DENIED.
IV. CONCLUSION
The Motion is GRANTED in part and DENIED in part as follows: • Plaintiffs' claims under § 411(a)(1) and (2) are dismissed under Rule 12(b)(6), consistent with the discussion in Subsection G of this Order, to the extent that they are based on allegations that do not support those claims. • Plaintiffs' claims under 29 U.S.C. §§ 529 530 are dismissed under Rule 12(b)(6) for failure to state a claim. • Defendant's request for dismissal of Plaintiffs' FAC for lack of jurisdiction under Rule 12(b)(1) is DENIED. • Defendant's request for a more definite statement under Rule 12(e) is DENIED. IT IS SO ORDERED.
Dated: November 23, 2010