Eutues White v. Fred Finkbeiner

thе settlement. already paid under CONCLUSION had However, charge a agree to it would surprising There is a dearth of Ken to expenses related of her portion for the construing law tucky the familiar vandal compensation under the payments prop future ism and malicious mischief clause Likewise, erty policies. re- settlement, though negligence insurance there even problems are semantical at least in some liability wiped out the insurer’s covery dealing opinions with to recov no noted that court payments. future However, expenses. expe litigation er compensation carrier requires a statute judge rienced district heard who and decid expenses of recover- employee’s share an case, himself judge ed this a former state How- third-party a tort-feasor. ing from Kentucky, support found for his decision ever, de- previous concluded that the court Kentucky issues in both sharing prin- “on required such had cisions the rule enunciated situation we follow such justice, and ciples equity, fairness Miller, Jr. in Judge Shackelford Rudd-Meli unjust enrich- invoked in cases as are Merritt, (6th kian, Inc. v. 282 F.2d court found the 70. The Id. at ment.” Cir.1960): pro- expenses widow’s liable insurer that in appears But the rule well settled obligation of its the amount portionate to cases, diversity where the local law is payments. for future rulings, if uncertain undеr state court a judge has a federal district court reached argues that these deci Travelers permissible upon question conclusion they applicable involved are not since sions law, Appeals local the Court of should un find this contention subrogation. We reverse, though may even it think the paid the Travelers could have persuasive. As said law should be otherwise. de then sued Velsicol claim and MSD cases, Appeals the Court of number subrogee. It not bene as should fendants accept should the considered view the liability requiring denying and fit from Judge. District against pursue negligent the claim MSD to (Citations omitted). It had the to contest parties. third judgment of the district court is faith, liability its coverage good but once affirmed. established, equity required pay it third-party its the cost of the share of

recovery redounded its benefit. which permit insurers

To hold otherwise

deny they the indemnification in provide force their and

contracted damages recovery for from sureds seek third, Having accepted premiums parties. WHITE, Petitioner-Appellant, Eutues property,- when that agreed to insure per damaged acts of third property required pay

sons the carrier FINKBEINER, Fred recovery coverage and seek extent of its Respondent-Appellee. may It against others who be liable. over No. 79-1563. in primary obligation its cannot avoid Appeals, United States Court of demnity require insured to seek its Seventh Circuit. wrong damages party. a third If it faith, fully coverage, good it denies even 15, 1985. Jan. proper expenses rea pay must share by the sonably incurred insured recover

ing party the benefits from third when insurer. recovery also inure to the Ruebner,

Ralph Ill., Chicago, petition- for er-appellant. Lien, Gen., M. Atty.

Kathleen Asst. Dale Bennett, Ill., Atty. Gen., Chicago, M. Asst. respondent-appellee. ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES WOOD, Before Judge, Circuit and SWY- PELL, GERT and Senior Judges. Circuit Jr., WOOD, ‍‌​​‌​​​​‌‌​​​‌​​‌‌​​‌‌​‌​​​​‌‌​‌‌​‌​‌​​‌​‌​‌​​‌‌‍HARLINGTON Circuit Judge. communication with law enforcement offi- an order of Pursuant cials, completely holding in undermined our us for fourth Court,1 this case before again II. The vacat- litiga- protracted history of this

time. The judgment ed our remanded the 1978,when this court reversed tion dates light reconsideration in of its decision petitioner-ap- denial the district court’s Stumes, U.S.—, cor- v. 104 Solem S.Ct. pellant application habeas White’s 1338, (1984), the case for 79 L.Ed.2d to pus and remаnded 579 a task which relief on amend- evidentiary hearing fifth White’s we now turn. his confes- claim that uncounseled

ment interroga- sion, during custodial obtained allegedly requested that coun- he tion after I. at trial present, was inadmissible sel be The sole before Court 436, Arizona, v. 384 U.S. under Miranda decision in was whether its (1966).2 1602, 694 On 86 16 L.Ed.2d S.Ct. applied retroactively. Employ- should be remand, again denied ha- the district court ing analysis set forth in Linkletter v. relief, corpus finding that had White beаs 618, 1731, Walker, 85 14 381 U.S. S.Ct. present counsel be dur- requested that (1965), Shott, L.Ed.2d 601 Tehan v. 382 ing interrogation and conclud- the custodial 459, 406, 453 U.S. 86 S.Ct. 15 L.Ed.2d ing was admissible that White’s confession v. 384 Jersey, and Johnson New judg- The district court’s under Miranda. U.S. 86 16 L.Ed.2d 882 S.Ct. Although appeal.3 affirmed on ment was (1966),6the Court determined the Edwards the district court’s determina- rejected we applied. decision should not be so right had not invoked his tion that White Court concluded that the Edwards decision present, held that White have counsel we prin- a new did announce constitutional validly right. subsequently waived this ciple designed accuracy enhance the judgment vacated this Court function, truthfinding a factor that case, directing us to and remanded the militate in of its favor retroactive our decision in II in reconsider White application, de- “prophylactic but a Arizona, 451 decision Edwards v. its implement pre-existing signed rights.” 378 101 68 L.Ed.2d U.S. S.Ct. Solem, suspect at 1343. That a 104 S.Ct. (1981).4 subsequently issued third We requested lawyer that has does not mean case, in opinion in which we reversed likely subsequent his statements are to be judgment denying habe- court’s district “[Wjhere interroga- inaccurate. renewed corpus as relief and remanded with instruc- significant tion raises doubt as the vol- writ tions to issue the and order White’s reliability untariness and of the statement he was retried 90 release unless within and, therefore, accuracy outcome man- days of this court’s issuance trial, likely suppression it is could Edwards, We concluded that date.5 the prophy- be achieved without reliance on held a sus- which the Id., adopted in lactic rule Edwards.” 104 have pect who has invoked his Ct. at 1342. The Court further found during 5. present a custodial interro- counsel that, “distinctly” because was not gation be will deemed to have waived law, subsequent by en- right only when he initiates foreshadowed earlier case law —White, —, guiding v. 6. "The criteria resolution оf the [retro- 1. U.S. 104 Fairman (1984). (a) activity] question implicate purpose to be standards, (b) served the new the extent of Finkbeiner, (7th 2. v. F.2d 194 Cir. law enforcement reliance authorities ("White I"). 1978) standards, (c) the the old effect on adminis- application justice tration of of a retroactive Finkbeiner, (7th Cir. 3. White v. 611 F.2d 186 Denno, U.S. the new standards.” Stovall v. 1979) (“White II"). 293, 297, 1967, 1970, 18 L.Ed.2d 1199 Finkbeiner, 4. v. 451 U.S. (1967). 69 L.Ed.2d 385 Finkbeiner, (7th Cir. F.2d 885 ("White 1982) III"). expected could not cases it attempts authorities which ap forcement raise on Edwards, peal anticipated decision. factual issues present to have that it failed to determined, a neces- “was not district recently the Court court. sary consequence of Miranda.” before us on remand from the Edwards, Prior to it at 1344. reconsideration in of one of decisions, justifiably rejected could been held its we government’s following attempt argue to counsel waiver of that late date that law voluntary even probable invocation could be deemed enforcement officers had cause though law authorities had for the enforcement detention of lug the defendant’s Id., citing, gage; the communication. we government, initiated held alia, Finkbeiner, argued inter White v. F.2d had in the trial court for the admis Cir.1979), (7th vacated, sion of the cocaine luggage found (1981). solely ground 69 L.Ed.2d on the that had officers Lastly, suspicion the Court found that retroactive reasonable tо luggage, detain the application of would a dis- had Edwards ‍‌​​‌​​​​‌‌​​​‌​​‌‌​​‌‌​‌​​​​‌‌​‌‌​‌​‌​​‌​‌​‌​​‌‌‍waived its to contend on remand ruptive jus- probable on the of effect administration that cause in Moya fact existed. might States, tice. affect the (7th Edwards admissibili- v. United 745 F.2d 1044 Cir. 1984). ty police of to the in a statements made large of The of number assessment The presented circumstances here do not substantiality these of Edwards claims fall arguably parameters even within the of pоssible hampered and “would retrials be this waiver doctrine. Respondents-appel- evidence, by problems faulty of lost memo- attempting present lees are not to for Solem, ry, missing witnesses.” issue, first time on remand a factual rele- Delaware, citing S.Ct. at Jenkins v. to vant the merits of White’s constitutional claim, which could have been raised in the L.Ed.2d Indeed, they district court. are not even attempting argue to for first time II. remand given that be pro- Edwards should matter, As a threshold we note that spective application Rather, only. Su- suggests conclusory in a fashion preme Court has remanded this case for respondents-appellees have “waived light Solem, in reconsideration of in which any concerning argument a limitation on it decided is not to applied that Edwards be ” applicability of they Edwards because The retroactively. Court has its exercised argue failed not Edwards should be jurisdiction and remanded this case re- for in applied retroactively either their Rule 19 despite consideration in of Solem following statement filed with this court fact respondents-appellees did not Supreme Court’s remand of White II present nonretroactivity question in in of further consideration Ed petition their for a writ of certiorari. in their writ

wards or for a effect, sponte the Court sua has ordered Supreme filed with the Cоurt certiorari in light us reconsider White III of So- in following holding our decision III lem. To find waiver in this case would corpus that White was entitled to habeas to nullify be Court’s exercise relief under Edwards. jurisdiction of its to circumvent appropriately remand order. We develops neither cases decline cites nor do so. argument support rudimentary even a theory.

this waiver We therefore novel would entitled be to decline consider III. Nevеrtheless, issue. we address it and argument We now address White’s find it to be without merit. scope concerning the nonretro Solem’s activity holding. hold

This court has not hesitated to Court stated minimum, nonretroactivity government to a waiver strict standard “[a]t trial, applied decision is not to be criminal but that it “unrea- means that a would be expect of final convictions.” collateral review So- sonable law enforcement authori- lem, petition for at 1345. White’s ties to have conducted themselves in ac- is, course, a corpus bright a writ of habeas cordance with line rule [Edwards’] announcement,” on his final collateral attack conviction. to its and that retro- language of Solem mandates application literal dis- active of Edwards “would is not to be rupt the conclusion justice” by the administration of re- case. applied in this quiring assessment of Edwards claims cases, large mаny number of which Nevertheless, White asks court would have to be retried. exception. Specifically, White carve out These factors militate presented an he Edwards- contends that application only favor of States to the United type claim begun trials after the decision an- petition seeking a writ of cer- in his nounced, possibly only or to those whose Illinois, tiorari rights were violated after Edwards de- the final Ill.2d 335 N.E.2d 457 cision was handed down.8 We need not appellate re- step process of direct exactly where the line decide should criminal conviction.7 There- view his drawn, it is fore, clear that nonretro- seeking he relief on this claim Solem’s review, activity analysis support applica- for the first time on collateral will above-quoted he contends the lan- tion of a situation of Edwards on collateral review In guage in was intended avoid. merely peti- Solem final conviction because the essence, apply would have this court White unsuccessfully sought, petition tioner via a review of con- on collateral final certiorari, for a writ of the Su- petitioners in the in cases victions preme Court render in his case later what point process in of direct raised at some the peti- became the decision. That appellate review the same claim the Su- merely step process tion was in the of a only found preme'Court later meritorious remedies, exhausting appellate a available in Edwards. precedent corpus condition to habeas re- claim. hold that view of his To exhaustion argument This be rejected. novel must exception serves as the for an basis exactly The determination of where the explicit command of Solem that Edwards nonretroactivity line should be drawn is applied is of not be on collateral review by retroactivity analysis it- informed impermis- final convictions is to undermine Jersey, v. self. See Johnson New 384 U.S. sibly underlying reasoning the Solem 732, approach at 86 S.Ct. 1780. White’s decision.9 totally is inconsistent with analysis undertaken in Solem. IV. not a only Court determined violation claim, unlikely rule of the Edwards to have White’s fifth amendment accuracy then, in light pre- affected of the result of the is to be of evаluated (6th Cir.1983), nom., petition Supreme cert. 7. denied certiorari. White sub filed Illinois, Rose, (U.S. 47 v. 424 U.S. S.Ct. L.Ed.2d 96 May Tate v. 52 U.S.L.W. 3829 (1976). (83-1747) (Edwards 1984) applied to be retroac- tively pending appeal direct it to cases when warning ‍‌​​‌​​​​‌‌​​​‌​​‌‌​​‌‌​‌​​​​‌‌​‌‌​‌​‌​​‌​‌​‌​​‌‌‍We the Solem 8. note Court’s that Ore- decided). was Bradshaw, gon v. 462 U.S. 103 S.Ct. (1983), not be 77 L.Ed.2d 405 "should read as suggests further our deci- 9. White because holding applies that Edwards on direct review sion in White II was vacated and remanded for occurring interrogations it before wаs decid- Edwards, light applica- in reconsideration of ed.” n. 9. The Louisi- at 1345 Edwards, i.e., tion of reinstatement of deci- has ana held that Edwards is not III, White the nonret- sion in violate retroactively applied to be cases that were on holding roactivity Adoption of this of Solem. appeal direct when the decision announced. course, would, nullify approach of Shea, (La.1982), See cert. State v. So.2d subsequent that we reconsider Court’s order U.S.—, granted, 80 L.Ed.2d light III in of White Solem. Engle, 722 Contra Rose v. F.2d 1277 Solem, 104 adopt case-by-case Edwards law. instead to analysis of also Karr v. See United States ex rel. whether to counsel had been (7th Cir.1984). Wolff, 732 F.2d analyze waived. We need not the waiver Respondents-appellees contend that White question panel here. The in IIWhite al- in II reflects the state the law this ready so, has done and determined that on announced, circuit beforе Edwards was the facts of the case a valid waiver was adopted by II this White should executed. court as the final order this case. White conclusion, evaluation White’s claim argues that United States ex rel. Williams pre-Edwards law in (7th Cir.1972), Twomey, v. F.2d 1248 circuit mandates reinstatement of our deci- II, rather than White reflects the state II, affirming judgment sion White the law this circuit to Edwards. denying applica- district court White’s establishing per reads He as se Williams corpus tiоn for habeas relief. assistance by suspect never be waived counsel can SWYGERT, Judge, Senior request for counsel has not Circuit

whose initial dis- senting. He characterizes II been honored. White aberration, points out that the as agree precluded I if are that we vacated decision was retroactively applying the rule of Edwards Court. Arizona, 477, 101 v. 451 U.S. apparently that because White believes we must reinstate our decision in II was vacated Finkbeiner, decision 611 F.2d and remanded for reconsid Supreme Court (7th Cir.1979) (“White II”), in which Edwards, II eration can we affirmed the denial White’s govern the possibly outcome of the Nevertheless, for habeas relief. present remand and reconsideration of this hold that the here waived its argument wholly case. This without application to contest the retroactive obvious, II merit. To state the that White Accordingly, of uphold Edwards. was vaсated after the Edwards decision Finkbeiner, our decision in White v. 687 longer good and no was announced is law (7th Cir.1982) (“White III”), F.2d 885 in II is irrelevant the issue at hand. White which we relied on grant Edwards to habe prior in was established law this circuit as relief. 1981, 18, the of the May date I willing am to concede that the circum- decision, applied question and was without States, in Moya stances v. 745 F.2d United See, pre-Edwards e.g., in other (7th Cir.1984),present stronger 1044 a case 1242, Fairman, Kennedy v. 618 F.2d 1246 application for the of a strict waiver rule. (7th Cir.1980). But I do not see how that ends inquiry. our Williams, argues also that “which White majority’s distinction the between cir- correctly re-empha- followed Miranda as Moya cumstances here and those in at best Edwards,” only in not reflects sized the case, that is a show this more difficult not state the in this

true of law circuit necessary. that a different result is Edwards, also labels this circuit as but one government Moya attempted In еspoused per a se rule. The latter presented factual raise issues that were not specifically rejected was in proposition to the district court. no We therefore had II, longer open and is no discus- White review, findings a and remand for fur- II, court, per Judge sion. this White findings given ther would have been unfair opinion author Swygert, the of and elapsed given and time waiver panel member of that decided Wil- apparently part strategy. of trial liams, concluded that Williams could not Moya, 745 F.2d at 1047-1048. In the establishing See per read as se newly-raised at is purely bar the issue right to counsel never can be waived. law, adopt declined to such a rule and chose one ultimate decision re- We 546 exceptional might impli- circumstances that factfinding. That further

quires no equitable principles in here cate the announced newly-raised issue of the resolution 557, Hormel, courts as 312 U.S. at 61 S.Ct. at 721. on the burdensome would be less party only one factor Nor do I see how the could as the adverse well surprise If such a consid- have the victim of unfair however. been weighed, to be retroactivity issues of law dispositive, anticipating then is a via- eration were waived, surely sure, legal system issue. To be “a never be ble could Rubin, presump- Toward a General precedent has a built-in the case. based Cf. 478, Waiver, Solem, U.C.L.A.L.Rеv. retroactivity,” 104 at Theory tion of S.Ct. ubiquitous con- (1981)(waiver is an apparently 478-79 and this court in III every of law area in almost cept, appearing presumption this in the proceeded on ab- type every with almost in connection any part effort on the of the sence legal right). retroactivity. But ret- litigants to contest roactive of a new constitutional application this case demon- long history of As the Solem, compelled, doctrine is not 104 S.Ct. providing strates, an interest society has and ever since Linkletter v. Walk- resolution and dispute final ‍‌​​‌​​​​‌‌​​​‌​​‌‌​​‌‌​‌​​​​‌‌​‌‌​‌​‌​​‌​‌​‌​​‌‌‍swift and er, 1731, 14 381 U.S. L.Ed.2d forcing By conserving judicial resources. (1965), always the issue has been treat- them, waiv- issues or lose litigants to raise open question, ed as an see speedy and final facilitates er doctrine 1341; Johnson, United v. S.Ct. States govern- Had the disputes. resolution 2579, 2583, 457 U.S. retroactivity when issue ment raised the I hold that the L.Ed.2d to us for recоnsid- remanded this case was government waived its to contest the Edwards, and had we eration application retroactive when it enough anticipate prescient been failed to raise the issue in III. U.S.—, Stumes, rule of majority further reasons that un- would have been fourth decision Supreme Court’s remand for reconsidera- “exceptional cases or necessary.1 Absent notwithstanding government’s fail- tion injus- ... where particular circumstances ure to raise result,” Hormel v. might otherwise tice implicit for certiorari was an man- 552, 557, Helvering, retroactivity. date to reach the issue of (1941),I would hold that 85 L.Ed. 1037 Leaving plain meaning aside or litigants issues of fact law waive language of the order Court’s proceedings in the raised are not “for further consideration in of” So- precede Supreme appellate court (as opposed lem to an order “for further remand.2 Court сonsideration of the merits of” White III ”), bar, I apply holding I and “to the do this rule to the case at Applying Supreme the intended to justifi- offers no not believe Court government note that the in this man- the retroactivi- constrain our reconsideration for its failure to raise cation For, argument III, point any majority’s ner. if the ty nor can it issue White important "particular circumstance” Edwards rule to be 2. An 1. Even if we had held the retroactive, considering of law opinion presumably whether to deem an issue our would viability Supreme the of the issue is so in its ultimate resolu- waived whether aided the Court Supreme By allowing perco- doubt or so obscure that a issues to much in tion of the issue. circuits, to consider the issue is not rea- up through the Su- Court remand late the various below, observing sonably As I note the retro- preme foreseeable. Court is able to benefit contexts, routinely activity the issue is one that attends the the treatment of issues in different doctrine, issues, announcement of a new constitutional and even alternative resolutions therefore, government here is not appellate waiver doc- courts. The mistakes surprise. process victim of unfair common law trine facilitates encouraging parties in the to raise issues —, reaching Supreme White, appellate courts before 3. Fairman Court. correсt, then on remand from III it been would have erroneous for KING, In the Matter of CHUNG

us to refuse to reach merits on the INC., Debtor. was not grounds retroactive. Yet, in hindsight, that would have been Appeal of Michael T. NIGRO. thing precisely the correct to do. No. 84-1013. persuaded purported

Nor am I significance Supreme of the Court’s deci- Appeals, United States Court spite government’s of the sion remand Seventh Circuit. retroactivity failure to raise thе issue in its supra certiorari. See 543. petition Argued Nov. 1984. precedent indicates Decided Jan. 1985. circumstances, equity ignore some will Hormel, 312 U.S. at waiver. See interpret at 721. Su- implicit not as an

preme Court’s remand issue, ignore the waiver but as

mandate implicit acknowledgment

an that the waiv- always open is, issue is one.

er an That duty ignore on remand is not to issue, ourselves; but to decide it for

waiver not to Court’s decision dismiss grounds was simply waiver prudence, act of inasmuch as a full might

reconsideration of the reveal inequita-

circumstances that would make it apply rule.

ble strict waiver

I sympathy do share some with view ‍‌​​‌​​​​‌‌​​​‌​​‌‌​​‌‌​‌​​​​‌‌​‌‌​‌​‌​​‌​‌​‌​​‌‌‍my proposed rule waiver could con-

ceivably undercut the Court’s at-

tempt to nonretroactivity enforce the For if in supra See

of Solem.

most cases the failed to raise during proceedings

subsequent to Edwards and to So-

lem, the ultimate result be to render

Edwards retroactive de But facto. data, any empirical we must absence by Supreme precedent

guided

indicates that ever since retroac-

tivity open issue has been an and foreseea- question, supra see and deduce

ble government lawyers were competent enough

generally to raise the in most

Because I believe the waived to contest the Ed-

wards, I respectfully up- dissent. III,

hold our decision in in which we grant

relied on Edwards to White habeas

relief.

Case Details

Case Name: Eutues White v. Fred Finkbeiner

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 15, 1985

Citation: 753 F.2d 540

Docket Number: 79-1563

Court Abbreviation: 7th Cir.