Murrеll Toby HOCKENBURY, III, Petitioner-Appellee, v. Dewey SOWDERS, Superintendent, Kentucky State Penitentiary, Respondent-Appellant.
No. 79-3339.
United States Court of Appeals, Sixth Circuit.
Sept. 30, 1980.
633 F.2d 443
The evidence at trial showed unequivocally that the type of conveyor, mold, injector, pump, oven and elastomeric material used by Arco, and its method of rejecting the finished grommet from the mold, were commonly known in the trade. Arco never isolatеd any aspect of its “layout” which is secret or in any way novel. Nothing remains of Arco‘s methods which can be labeled a trade secret.
Even if Arco had been able to show sufficient novelty to satisfy this prerequisite of trade secret protection under Michigan law, it could not prevail. Under Michigan law, the alleged trade secret must in fact have been treated as a secret by the plaintiff. In Kubik v. Hull, supra, 224 N.W.2d at 86-87, the Michigan Court of Appeals wrote: “To be a trade secret, the information must, of necessity, be a secret: specifically there must be evidence presented that sufficient measures have been taken to guard the secrecy of the information and preserve its confidentiality.” In the same vein, the Michigan Supreme Court noted in Glucol Mfg. Co. v. Schulist, 239 Mich. 70, 75, 214 N.W. 152, 153 (1927), that the secrecy requirement “does not denote the mere privacy with which an ordinary business is carried on.”
Undisputed testimony at trial showed that Arco had not screened off or restricted any areas in its plant and did not systematically screen visitors. Suppliers and customers were routinely shown through the plant. Management did not inform plant workers or visitors that anything in the plant was confidential. Phillip Millard, Rubright‘s predecessor at Arco testified that Arco‘s system for making grommets was neither secret nor confidential and that a visitor to the plant could observе the entire process easily. In fact, the only testimony that the layout was secret came from Arco‘s former president who admitted that the company took no palpable precautions, but nevertheless testified that he had considered the layout and approach to be secret. This subjective intent to treat something as secret, never acted upon by the company, is insufficient as a matter of law to warrant trade secret protection.
For the reasons stated herein we reverse the district court‘s ruling that defendants infringed plaintiff‘s patent and misappropriated plaintiff‘s trade secrets, and remand for modification of the district court judgment accordingly.
Barbara B. Edelman, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellant.
Larry H. Marshall, Asst. Public Advocate, Frankfort, Ky., for petitioner-appellee.
Before WEICK, MERRITT and KENNEDY, Circuit Judges.
A majority of the Court having not voted in favor of an en banc rehearing, the petition for rehearing has been referred to the hearing panel for disposition.
Judge Keith‘s dissent from the denial of the rehearing en banc makes several assertions in support of his conclusion that the decision of the panel is incorrect. While the panel believes that the opinion in this case adequately refutes most of the assertions made in the dissent, it feels cоmpelled to respond to one of Judge Keith‘s conclusions regarding the application of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
In his dissent Judge Keith opines that if a state‘s contemporaneous objection rule, as a matter of state law, permits the state court any exception for manifest injustice or plain trial error, then Wainwright v. Sykes, supra, cannot bar federal review even though the state court in its interpretation of state law applied its contempоraneous objection rule. In view of the number of states with “plain error“, “manifest injustice“, or similar exceptions to their contemporaneous objection rules, Judge Keith‘s reasoning would give the Wainwright decision no effect whatsoever. That Wainwright does not permit this conclusion is best illustrated by the Wainwright decision itself, and the law of Florida under which it originated. In Wainwright the Florida courts had refused to consider the merits of the habeas petitioner‘s claim because of noncompliance with the state‘s contemporaneous objection requirement. The Supreme Court held that the petitioner‘s failure to timely object in accordance with the Florida rule amounted to an independent and adequate state ground for the decision. The fact that Florida has a “fundamental error” exception to its contemporaneous objection requirement, Clark v. State, 363 So.2d 331, 333 (Fla.1978) did not convince the Supreme Court that it should undertake an independent review of the petitiоner‘s claims under the fundamental error standard of review which had been available to the state court. Implicit in the Supreme Court‘s opinion in Wainwright is the conclusion that a state may decide when its contemporaneous objection requirement applies. Similar deference is evident in Ulster County Court v. Allen, 442 U.S. 140, 147-154, 99 S.Ct. 2213, 2219-2223, 60 L.Ed.2d 777 (1979), where the Supreme
Accordingly, upon consideration of the Court, it is ORDERED that the petition for rehearing be and hereby is DENIED.
KEITH, Circuit Judge, dissenting from denial of rеhearing en banc.
This case presents a constitutional violation of the state habeas petitioner‘s rights under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and Charles v. Anderson, 610 F.2d 417 (6th Cir. 1980). The district court granted the writ of habeas corpus, and there is apparently no dispute that the petitioner‘s constitutional rights were violated.*
Instead of affirming the district court, the panel conducted an independent analysis under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and remanded the case to the district court in light of that analysis. Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980). Unfortunately, the pаnel‘s opinion is at odds with established authority in the circuit. Today, the en banc court refuses to act in the face of a clear affront to circuit precedent. I must respectfully dissent.
I
The problem in this case was that, although there was clear constitutional error in the state trial, counsel never objected to it. Thus, this case presents a threshold question whether federal habeas corpus relief is barred by the Supremе Court‘s decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This was the doctrine seized upon by the panel to deny relief to the petitioner.
The panel decision cannot be reconciled with a series of cases in this court which clearly established this circuit‘s view of Wainwright: Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979) and Krzeminski v. Perini, 614 F.2d 121 (6th Cir. 1980) (a case not cited by the panel).
Under these cases, error which is apparent on the trial record, which is of constitutional dimension, is reviewable in habeas corpus proceedings if state law allows review of such error. The leading case holding this is Judge Edward‘s opinion in Berrier v. Egeler, where this court affirmed the grant of a writ of habeas corpus despite counsel‘s failure to object at trial or raise the jury instruction issue in question on
Berrier was followed in Cook v. Bordenkircher and Rachel v. Bordenkircher as an alternative ground for decision. Both Cook and Rachel held that habeas corpus relief is available in cases of plain trial error. These decisions were further endorsed in Krzeminski v. Perini, 614 F.2d at 123 n.2 which stated:
Where there is plain error in the record which is reviewable under state law, we can review it in a habeas corpus proceeding .... The Ohio state courts review plain error in jury instructions. .... Accordingly, we can do the same.
The panel opinion in this case is completely at odds with these cases. As this court noted in Cook v. Bordenkircher, supra, at 119, plain trial error is reviewable in Kentucky, even absent an objection. We are thus not precluded from reviewing it in a habeas corpus proceeding. The statement in the panel opinion that “[t]his court has never ruled that federal habeas corpus review is proper under Wainwright based solely on an independent federal analysis of plain error” (620 F.2d at 114) is simply not true.1
II
Wainwright is based on “considerations of comity and concerns for the orderly administration of criminal justice.” Id. 433 U.S. at 84, 97 S.Ct. at 2505, citing Francis v. Henderson, 425 U.S. 536, 538-39, 96 S.Ct. 1708, 1709-1710, 48 L.Ed.2d 149 (1976). In Wainwright itself, the state courts had consistently refused to review the claim which was at issue there absent a contemporaneous objection at trial. “But if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.” County Court v. Allen, 99 S.Ct. at 2223. See Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980); Moran v. Estelle, 607 F.2d 1140, 1141-43 (5th Cir. 1979); Canary v. Bland, 583 F.2d 887, 889-90 (6th Cir. 1978); Cannon v. Alabama, 558 F.2d 1211, 1216 n.12 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978).
Cook v. Bordenkircher, supra, makes it clear that Kentucky courts can review plain trial error to avoid manifest injustice. The panel agreed that this is true: “Kentucky‘s contemporaneous objection requirement precludes appellate review of matters which are not objected to, unless manifest injustice results.” (620 F.2d at 113). In fact the panel states, correctly, that “the nature of Kentucky‘s contemporaneous objection rule required the court to make a cursory review of the merits of petitioner‘s claim.” It is precisely because this is true that Wainwright v. Sykes does not apply. For the reasons outlined above, if the state contemporaneous objection rule, as a matter of state law, does not apply in cases of manifest injustice or plain trial error, then Wainwright v. Sykes cannot bar federal review. This is exactly what Berrier v. Egeler, Rachel v. Bordenkircher, Cook v. Bordenkircher, and Krzeminski v. Perini held.
Cook v. Bordenkircher, supra, followed Miller v. State of North Carolina, 583 F.2d 701
III
In this case, there is no question that the Kentucky Supreme Court addressed the merits of the constitutional issue. See Hockenbury v. Commonwealth, 565 S.W.2d 448, 450 (Ky.1978), reprinted in the panel opinion, 620 F.2d at 115. The Kentucky court also mentioned in its opinion that the petitioner did not object at trial and that this would preclude review as well. However, it is clear that this holding was an alternative basis for relief. (“It is also clear from the record that trial counsel made no objection ....“)
The panel seizes upon this latter statement by the Kentucky court to avoid affirming the district court. It seems obvious to me, as it was to Judge Johnstone below, that the Kentucky court reviewed the merits. As the panel openly states, Kentucky law requires that the Kentucky courts review trial error under a manifest injustice standard. How, then, can the panel rationalize its result?
The panel states that “the federal court must determine whether the petitioner‘s failure to comply with the contemporaneous2 objection requirement was a substаntial basis of the state court‘s denial of petitioner‘s claim.” 620 F.2d at 115. The panel goes on to conclude that the state court‘s review of the merits was “cursory“, and not “complete” or “concrete“. Id.
The panel‘s standard is untenable in the face of Kentucky law which allows review of plain error. The Kentucky court simply did not regard the prosecutor‘s argument as error, and noted in any event that no objection was made. The panel‘s statement that “[a]t least some review of the merits of a defendant‘s claims must be made in order to determine whether to apply the procedural rule or review the merits on the basis of manifest injustice” is intellectually dishonest. Kentucky law requires review of plain error.2 Further, if a Kentucky court wishes to woodenly apply a contemporaneous objection rule, in disregard of Kentucky law, then it can do so dirеctly. We should not assume that the Kentucky courts fail to follow their own law. Nor should we assume that if a Kentucky court fails to follow Kentucky‘s manifest injustice rule,
IV
Wainwright v. Sykes’ issues recur constantly in the federal courts. The panel opinion creates an intra-circuit conflict on
The instant case is a particularly egregious example of the en banc court‘s failure to control an aberrant panel decision. Judge Johnstone faithfully applied circuit precedent in this case. Thе district judges of the circuit now have irreconcilable precedents on an issue which they must deal with every day. The panel decision reflects utter disregard for circuit precedent. I cannot remain silent in the face of this court‘s refusal to grant an en banc.4
NATHANIEL R. JONES, Circuit Judge, dissenting from denial of rehearing.
Because the panel‘s opinion in Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980) conflicts with several prior decisions of this Court, I heartily join in Parts I, II and III of my Brother Keith‘s dissenting opinion. I write separately only to exрress my chagrin that the full court has failed to review en banc the panel‘s treatment of exceptionally important issues of the construction of
The opinion in Hockenbury distinguishes this Court‘s decisions in Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978),
Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978), and Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979), but the distinctions, as Judge Keith has carefully explained, are illusory. The rule in this Circuit before Hockenbury was that a federal court could make an independent determination of the substantiality of federal constitutional questions raised in habeas corpus petitions where the state contemporaneous objection rule contained an exception in the case of manifest injustice. The decision in Cook v. Bordenkircher, 602 F.2d at 119 plainly establishes this rule by its reference to Miller v. North Carolina, 583 F.2d 701, 705-06 (4th Cir. 1978). This case raises two exceptionally important questions with respect to the construction of
- If the state contemporaneous objection rule provides an exception in the case of “manifest injustice” or “plain error,” may the federal court in reviewing а petition for habeas corpus make its own determination of the substantiality of the federal constitutional question raised in the petition?
- If the state court addresses a federal constitutional question on the merits
and also indicates that an alternative ground for denying the criminal defendant‘s appeal is the application of the contemporaneous objection rule, may a federal court review that federal constitutional question in a habeas corpus petition?
Hockenbury provides a negative answer to both questions.
The Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), did not answer either question. In Wainwright, the Florida procedural rule stood as an absolute bar to review by the state appellate courts of the issues raised. Justice White, concurring, believed that the majority opinion did not affect a “plain error” rule. 433 U.S. at 99, 97 S.Ct. at 2512. Wainwright does suggest the factors which this Court should consider, such as achieving comity in the relations between the federal and state courts. 433 U.S. at 88, 97 S.Ct. at 2507. The substance and strength of these factors, addressed in the context of Kentucky‘s contemporaneous objection rule, which allows an exception for “manifest injustice,” may differ significantly from the Supreme Court‘s evaluation of the Florida rule in Wainwright.
I am mindful of the concerns often expressed by my more senior colleagues about en banc hearings. Yet, I am convinced that such displeasure must not outweigh the fundamental need to resolve a clear conflict. Neither should it be a reason for perpetuating a potential narrowing of the channel through which aggrieved parties must pass to obtain relief for intrusions on their federal constitutional rights. In my view, the questions have great importance and require further study and resolution by this Court.
UNITED STATES of America, Plaintiff-Appellant, v. Tallice ANDREWS and Thurston Brooks, Defendants-Appellees.
No. 78-5166.
United States Court of Appeals, Sixth Circuit.
Argued June 4, 1980. Decided Sept. 30, 1980.