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The Constitutional Foundation
Case 1.3

Mitchell County v. Zimmerman
— N.W.2d —-, 2012 WL 333777 (Iowa)
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Supreme Court of Iowa.
Matthew Hoover ZIMMERMAN, Appellant.
No. 10–1932.
Feb. 3, 2012.
Members of the Old Order Groffdale Conference Mennonite Church are forbidden from driving tractors unless their wheels are equipped with steel cleats. A Mitchell County road protection ordinance forbids driving such vehicles on the highways. The question we must decide is whether the ordinance violates the religious rights of these church members under either the United States or the Iowa Constitution.
Although the issue is a close one, we conclude the ordinance as applied to church members violates the Free Exercise Clause of the First Amendment of the United States Constitution.FN1 For the reasons stated herein, we find the ordinance is not of general applicability because it contains exemptions that are inconsistent with its stated purpose of protecting Mitchell County’s roads. We also find the ordinance does not survive strict scrutiny because it is not the least restrictive means of serving what is claimed to be a compelling governmental interest in road protection. We therefore reverse and remand for entry of an order of dismissal.
I. Facts and Procedural History.
On February 1, 2010, Matthew Zimmerman was cited for operating a Massey Ferguson tractor in violation of a Mitchell County road protection ordinance. The tractor had steel cleats or “lugs” on its wheels. The lugs, which comprise “the bar that makes contact with the highway as the tractor moves forward,” were several inches long and approximately an inch wide, and were attached to a rubber belt mounted on the wheel.
The ordinance in question was adopted by Mitchell County in September 2009. Its stated purpose is “to protect Mitchell County hard surfaced roads.” The ordinance provides:
No person shall drive over the hard surfaced roadways, including but not limited to cement, concrete and blacktop roads, of Mitchell County, or any political subdivision thereof, a tractor or vehicle equipped with steel or metal tires equipped with cleats, ice picks, studs, spikes, chains or other projections of any kind or steel or metal wheels equipped with cleats, ice picks, studs, spikes, chains, or other projections of any kind.
Mitchell County, Iowa, Mitchell Cnty. Road Prot. Ordinance (Sept. 22, 2009).
Zimmerman moved to dismiss the citation on the ground that his constitutional rights to free exercise of religion under the First Amendment to the United States Constitution and article I section 3 of the Iowa Constitution had been violated. A hearing was held before a magistrate, who found Zimmerman guilty of violating the ordinance and denied the motion. Zimmerman appealed the ruling to the district court. Because no recording of the hearing before the magistrate was available, a new hearing was held.
Eli Zimmerman, a fellow member of the Old Order Groffdale Conference Mennonite Church, testified at the district court hearing in support of the motion to dismiss. He explained the use of steel wheels is a religious practice and a church rule of the Old Order of Groffdale Mennonite Conference. Zimmerman cited Romans 12:2 as the biblical passage from which the rule derives.FN2 The practice of using steel wheels on tractors dates back at least forty years. The church determined farm tractors could be used in addition to the traditional horse and buggy, but would have to be refitted with steel wheels to maintain small-scale farming and a close-knit community. If a church member drove a tractor that did not have steel wheels, he or she would be barred from the church. The steel wheel rule helps insure that tractors are not used for pleasure purposes and thereby displace the horse and buggy.
Zimmerman testified that it is permissible for church members to hire other persons to drive them for business purposes in vehicles with rubber tires. Also, a church member could hire someone with a rubber-tired tractor to haul his or her farm wagons to market.FN3 However, this leads to “a lot of inconveniences.” In addition, a church member could use horses for hauling purposes, if it were possible to make a living doing so. In short, it has long been a religious requirement of the Old Order of Groffdale Mennonite Conference that any motorized tractor driven by a church member be equipped with steel wheels. According to Zimmerman, “The religious practice, it has to be steel hitting the surface, [be] it soil, [be] it highway, [be] it concrete.”
The prohibition on driving motorized vehicles with rubber tires is not the only church rule affecting modern conveniences. Zimmerman testified that the use of radio, television, and computers is also forbidden in his religious community.
Over the years, to minimize possible road damage, the steel cleats and lugs have been made wider and have been mounted on rubber belts to provide cushioning. In Mitchell County, the Mennonites use county roads mainly when they need to haul their produce to the produce market. Both parties conceded that for some time the Mennonites and the County had peacefully coexisted, and the County did not object to the Mennonites’ use of steel wheels. However, in 2009, the County embarked on a $9 million road resurfacing project, where the existing roads were “white-topped,” or covered with concrete. The County had never used this new method of repaving before.
Two Mitchell County officials testified at the hearing that the steel wheels have damaged their newly white-topped roads by causing cracks and taking paint off them. Photos introduced by the County showed some cracks as well as markings where the steel wheels had come into contact with the road surface. As explained by the county engineer, “Because the steel is harder than the aggregates in that material—in the concrete surfaces and the asphalt surfaces, … it will wear that surface off.” FN4
Accordingly, in September 2009, the County adopted its road protection ordinance. The ordinance provides that violators are subject to a maximum fine of $500 or 30 days in jail, or both, and a civil penalty may also be imposed “equal to the amount necessary to repair the damage to the road.”
Under existing state law, no tire on a vehicle moved on a highway is allowed to have “any block, stud, flange, cleat, or spike or any other protuberances of any material other than rubber,” except for:
1. Farm machinery with tires having protuberances which will not injure the highway.
2. Tire chains of reasonable proportions upon any vehicle when required for safety because of snow, ice, or other conditions tending to cause a vehicle to skid.
3. Pneumatic tires with inserted ice grips or tire studs projecting not more than one-sixteenth inch beyond the tread of the traction surface of the tire upon any vehicle from November 1 of each year to April 1 of the following year, except that a school bus and fire department emergency apparatus may use such tires at any time.
Iowa Code § 321.442 (2009). However, a Mitchell County supervisor testified that “the penalty there is only a $10 fine, which … isn’t prohibitive really, … so we enacted … this ordinance to protect our roads.” The County concedes that its ordinance, which expressly states “Iowa Code § 321.442 shall continue to remain in full force and effect,” is intended to mirror the Iowa Code provision substantively, while imposing a stiffer sanction for violations. Mitchell Cnty. Road Prot. Ordinance.
The district court overruled Matthew Zimmerman’s motion to dismiss. It found “the use of steel wheels on tractors is a matter of religious conviction for members of the GC church.” It also determined that the Mitchell County ordinance substantially burdens this religious practice…. These tractors are used to do field work, transport grain and produce to market, and are shared amongst neighbors and family members. All of these activities require that the tractors be driven on hard surfaced county roads. While it is admitted that other practices could be adopted to accomplish these same tasks, this ordinance will substantially burden the Mennonites … by requiring them to find other modes of transporting both their goods to market and their tractors to fields.
However, the court held the Mitchell County ordinance was both neutral and generally applicable. It was not motivated by religious animosity but “to protect Mitchell County’s investment in resurfacing their roads,” and “it treats secular and religious conduct equally.” The court therefore sustained the ordinance against Zimmerman’s First Amendment challenge, citing Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).FN5
The district court then turned to Zimmerman’s arguments based on article I section 3 of the Iowa Constitution. The court held that even if, hypothetically, that provision required the ordinance to be supported by a compelling state interest, such an interest had been established here. As the court stated, “protecting the integrity of the county’s roads” from damage is a compelling state interest, and the ordinance is “the least restrictive means” because it only disallows steel wheeled vehicles “on the hard surfaced roads.”
We granted Zimmerman’s application for discretionary review.
II. Standard of Review.
[1] We review constitutional claims de novo. Zaber v. City of Dubuque, 789 N.W.2d 634, 636 (Iowa 2010).
III. The First Amendment Claim.
Zimmerman contends the district court erred in denying his motion to dismiss based on the First Amendment to the United States Constitution. The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the Government for a redress of grievances.
U.S. Const. amend. I (emphasis added). The highlighted language, the Free Exercise Clause, was part of the original Federal Bill of Rights and was made applicable to the states through the Fourteenth Amendment in Cantwell v. Connecticut. 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1217–18 (1940).
[2] In America, one has “the right to believe and profess whatever religious doctrine one desires.” Smith, 494 U.S. at 877, 110 S.Ct. at 1599, 108 L.Ed.2d at 884. Yet the Free Exercise Clause does not guarantee the government’s absolute noninterference with religion.
Two landmark cases under the Free Exercise Clause were Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In Sherbert, the United States Supreme Court held that a Seventh Day Adventist could not be denied unemployment benefits because she refused to work on Saturday for religious reasons. 374 U.S. at 409–10, 83 S.Ct. at 1797, 10 L.Ed.2d at 973–74. The Court found a substantial burden on the free exercise of her religion because the appellant was “force[d] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404, 83 S.Ct. at 1794, 10 L.Ed.2d at 970. The Court then turned to whether “some compelling state interest” justified this “substantial infringement of appellant’s First Amendment right” and found none. Id. at 406–07, 83 S.Ct. at 1795, 10 L.Ed.2d at 972. Therefore, the Court concluded, “South Carolina may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest.” Id. at 410, 83 S.Ct. at 1797, 10 L.Ed.2d at 974.
In Yoder, the Court decided that Wisconsin’s compulsory school attendance law could not be applied to members of the Old Order Amish religion whose religion forbids school attendance after the eighth grade. 406 U.S. at 207–08, 234, 92 S.Ct. at 1529–30, 1542, 32 L.Ed.2d at 20–21, 36. The Supreme Court seemed to say that government could not compel conduct that interferes with the practice of a legitimate religious belief except based upon “interests of the highest order.” Id. at 214–15, 92 S.Ct. at 1533, 32 L.Ed.2d at 24–25. Ultimately, it rejected the state’s contention that “its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way.” Id. at 221, 92 S.Ct. at 1536, 32 L.Ed.2d at 28.
A decade later, however, the Supreme Court observed that when a citizen engages in a commercial activity, it may not be possible for him or her to avoid, on religious grounds, the effects of laws regulating that activity:
Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.
United States v. Lee, 455 U.S. 252, 261, 102 S.Ct. 1051, 1057, 71 L.Ed.2d 127, 134–35 (1982), superseded by statute on other grounds, Exemption Act of 1988, Pub.L. No. 100–647, Title VIII, § 8007(a)(1), 102 Stat. 3781.
In Lee, a member of the Old Order Amish objected to the payment of employer Social Security taxes. He maintained that his faith already imposed an obligation on members to provide for fellow members. Both payment and receipt of Social Security benefits, he contended, were religiously forbidden. The Supreme Court did not dispute these points. Id. at 257, 102 S.Ct. at 1055, 71 L.Ed.2d at 132. It acknowledged, rather, that there was a conflict between the Amish faith and the requirements of the Social Security system. But the Court cited “the broad public interest in maintaining a sound tax system” and found it would be difficult to “accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs.” Id . at 259–60, 102 S.Ct. at 1056–57, 71 L.Ed.2d at 134. “The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise.” Id. at 261, 102 S.Ct. at 1057, 71 L.Ed.2d at 135. Hence, the Court rejected Lee’s free exercise claim.
This case arguably bears some similarities to Lee. The tenets of Zimmerman’s religion require him to engage in a commercial activity, i.e., hauling farm products, on a different basis from others. But the highways belong to everyone, and there is a public interest in preserving and protecting those highways.
[3][4] Eight years after Lee, in Smith, the Supreme Court made clear that the First Amendment’s Free Exercise Clause does not prohibit a state from enforcing “a neutral, generally applicable regulatory law,” and cited Lee as its “most recent decision” involving such a law. Smith, 494 U.S. at 878–80, 110 S.Ct. at 1600–01, 108 L.Ed.2d at 885–86. A regulatory law that is both neutral and generally applicable passes constitutional muster under the Smith line of authority, even though it may require performance of an act—or abstention from conduct—in contradiction to an individual’s religious beliefs. Id.FN6 Smith distinguished Yoder on the ground it was not purely a free exercise case but involved an additional right—“the right of parents … to direct the education of their children.” Id. at 881, 110 S.Ct. at 1601, 108 L.Ed.2d at 887. Smith distinguished Sherbert as an unemployment case. Id . at 882–84, 102 S.Ct. at 1602–03, 108 L.Ed.2d at 888–89.
[5] On the other hand, laws that are not neutral or of general applicability require heightened scrutiny. They “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32, 113 S.Ct. 2217, 2226, 124 L.Ed.2d 472, 489 (1993).
[6] Smith and Lukumi illustrate the two poles of Federal Free Exercise Clause analysis. In Smith, the individuals were denied unemployment benefits because they had been fired for using peyote, in violation of a neutral and generally applicable regulatory law. 494 U.S. at 874–76, 110 S.Ct. at 1597–98, 108 L.Ed.2d at 882–84. The Supreme Court found no violation of their free exercise rights. Id. at 886–87, 110 S.Ct. at 1604, 108 L.Ed.2d at 890–91. By contrast, in Lukumi, the church challenged ordinances that targeted the killing of animals for “sacrifice” but not for food. 508 U.S. at 527–28, 113 S.Ct. at 2223–24, 124 L.Ed.2d at 486–87. The Supreme Court concluded that “each of Hialeah’s ordinances pursues the city’s governmental interests only against conduct motivated by religious belief,” id. at 545, 113 S.Ct. at 2233, 124 L.Ed.2d at 498, applied strict scrutiny, and found the ordinances did not pass a strict scrutiny test, id. at 546–47, 113 S.Ct. at 2233–34, 124 L.Ed.2d at 498–99. Mitchell County argues that its ordinance is a neutral and generally applicable regulatory law and, therefore, Smith is the more relevant precedent.FN7
In Smith, the Supreme Court did not define general applicability or expressly distinguish it from neutrality, but merely referenced “neutral law of general applicability” and “neutral, generally applicable law” as valid limits on free exercise. 494 U.S. at 880–81, 110 S.Ct. at 1600–01, 108 L.Ed.2d at 886–87. Smith did not explore the details of general applicability because it dealt with a uniformly applicable law that contained no exemptions. FN8 Lukumi provided some clarification of the contours of general applicability but, because of the extreme degree of gerrymandering involved, did not provide sufficient specificity to guide lower courts in cases where fewer exemptions are allowed. See Lukumi, 508 U.S. at 543, 113 S.Ct. at 2232, 124 L.Ed.2d at 497 (“In this case we need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.”).FN9 Lukumi did make clear that although neutrality and general applicability were overlapping concepts they were nevertheless distinct, and therefore a law could fail the separate test of general application even if it satisfied the neutrality criteria. See id. at 542, 113 S.Ct. at 2231–32, 124 L.Ed.2d at 496 (referring to general applicability as a “second requirement of the Free Exercise Clause” and devoting Section IIB of the opinion to a separate analysis of this issue). Lukumi separated the neutrality and general applicability criteria which in Smith were loosely treated as a single inquiry. Still, the Lukumi Court recognized the two requirements were “interrelated,” and “failure to satisfy one requirement is a likely indication that the other has not been satisfied.”   Id. at 531, 113 S.Ct. at 2226, 124 L.Ed.2d at 489.
[7][8][9] A. Facial Neutrality. We must first determine whether the ordinance is facially neutral. The most basic requirement of neutrality is “that a law not discriminate on its face.” Id. at 533, 113 S.Ct. at 2227, 124 L.Ed.2d at 491. “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.” Id. Here the ordinance reads as follows:
No person shall drive over the hard surfaced roadways, including but not limited to cement, concrete and blacktop roads, of Mitchell County, or any political subdivision thereof, a tractor or vehicle equipped with steel or metal tires equipped with cleats, ice picks, studs, spikes, chains or other projections of any kind or steel or metal wheels equipped with cleats, ice picks, studs, spikes, chains or other projections of any kind.
Mitchell Cnty. Road Prot. Ordinance. The ordinance’s language is devoid of any religious references. Furthermore, Mitchell County gave the ordinance the official title of the “Mitchell County Road Protection Ordinance.” Id. (emphasis added). Moreover, the first section of the ordinance, entitled “Purpose,” states:
The purpose of this ordinance is to protect Mitchell County hard surfaced roads, including but not limited to cement, concrete and blacktop roads, from damage caused by a tractor, vehicle or implement equipped with steel or metal tires equipped with cleats, ice picks, studs, spikes, chains or other projections of any kind or steel or metal wheels equipped with cleats, ice picks, studs, spikes, chains or other projections of any kind.
(emphasis added). Thus, we agree with the district court that “[t]he language of the statute refers to the use of steel wheels in a secular and nonreligious context.” Therefore, the ordinance is facially neutral.
[10] B. Operational Neutrality. Our next inquiry is whether the ordinance is operationally neutral. Because the Supreme Court has recognized that “[f]acial neutrality is not determinative,” we must examine the ordinance for “governmental hostility which is masked, as well as overt.” Lukumi, 508 U.S. at 534, 113 S.Ct. at 2227, 124 L.Ed.2d at 491 (recognizing that “[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality”). We look beyond the language of the ordinance to determine whether there is “impermissible targeting” of the Old Order of Groffdale Mennonite Conference.   Id. at 535, 113 S.Ct. at 2228, 124 L.Ed.2d at 491–92 (referring to a “ ‘religious gerrymander’ “ (citation omitted)). In other words, we ask whether “religious practice is being singled out for discriminatory treatment.” See id. at 538, 113 S.Ct. at 2229, 124 L.Ed.2d at 493.
[11] We agree with the district court that religious practice is not being intentionally discriminated against. The record supports the district court’s conclusion that Mitchell County enacted the ordinance, not to persecute members of a particular faith, but to protect its $9 million investment in newly repaved roads. The ordinance was passed by Mitchell County only after its engineers detected apparent damage caused to the roads by steel wheels. That damage had not occurred prior to 2009 because the repaving project that year was the first time the “white-topping” method had been used by the County. Moreover, the prohibitions of the ordinance essentially buttress existing state law requirements. See Iowa Code § 321.442.
At the same time, we must recognize the ordinance was adopted specifically to address use of the resurfaced concrete roads by steel wheel tractors. This is not a case where new activity brushed up against a preexisting ordinance, but where an ordinance was passed to deal with a longstanding religious practice. See Yoder, 406 U.S. at 219, 226, 235, 92 S.Ct. at 1535, 1538, 1543, 32 L.Ed.2d at 27, 31, 36 (noting that “[t]he requirement for compulsory education beyond the eighth grade is a relatively recent development in our history,” whereas the Old Order Amish faith has a “history of three centuries”).
C. General Applicability. We now turn to the more difficult question whether the ordinance is “generally applicable.” Lukumi found that Hialeah’s ordinances violated the principle of general applicability because “the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs.” 508 U.S. at 524, 113 S.Ct. at 2222, 124 L.Ed.2d at 484. The Court further made clear that an ordinance could violate the principle of general applicability even if religious conduct were not the only activity it prohibited, so long as religious adherents ultimately bore most of the burden of compliance. See id. at 535–37, 113 S.Ct. at 2228–29, 124 L.Ed.2d at 492–93 (noting that “almost the only conduct subject to Ordinances … is the religious exercise” and “[t]he net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice” while “most other killings fall outside the prohibition”). The Court emphasized that Hialeah’s ordinances imposed restrictions on Santeria worshippers the city was not willing to impose in other contexts, noting that this was the “precise evil … the requirement of general applicability is designed to prevent.” Id. at 545–46, 113 S.Ct. at 2233, 124 L.Ed.2d at 498. The Court objected to Hialeah’s “devalu[ation of] religious reasons … by judging them to be of lesser import than nonreligious reasons.” Id. at 537, 113 S.Ct. at 2229, 124 L.Ed.2d at 493. It recognized that although “[a]ll laws are selective to some extent, … categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice.”   Id. at 542, 113 S.Ct. at 2232, 124 L.Ed.2d at 496.
The Lukumi Court found that the Hialeah ordinances were underinclusive in terms of serving the purposes they were designed for—protecting public health and preventing cruelty to animals—in that they “fail[ed] to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does.” Id. at 543, 113 S.Ct. at 2232, 124 L.Ed.2d at 497. This underinclusion was held to be substantial because the overwhelming majority of activity that the ordinances targeted was religious. See id. Two types of underinclusiveness were identified: (1) secular activities that equally threatened the purposes of the ordinances but were not prohibited (and therefore were approved by silence), and (2) some equally deleterious secular activities that were granted express approval. See id.
Thus, according to Lukumi, the Free Exercise Clause appears to forbid the situation where the government accommodates secular interests while denying accommodation for comparable religious interests. Hialeah could not constitutionally treat religious sacrifice as less worthy of protection than secular animal killings that posed the same type and degree of potential harm.
Smith dealt with a law containing no exemptions. The ordinances in Lukumi had a wide array of exemptions. Because there has been no subsequent word from the Supreme Court on the meaning of “general applicability,” other courts have had to wrestle with its definition in specific cases.FN10 Lukumi tells us that underinclusion is problematic when it is “substantial, not inconsequential.” Id. Other courts have had to refine the meaning of these rather general terms.
One prominent discussion of general applicability was authored by Supreme Court Justice Alito when he served on the Third Circuit. See Fraternal Order of Police Newark Lodge v. City of Newark, 170 F.3d 359 (3d Cir.1999). In Fraternal Order, Sunni Muslim police officers refused to comply with department regulations requiring them to shave their beards for the purpose of establishing uniform appearance to the public and morale within the police force. Id. at 366. This regulation did not allow for a religious exemption but did permit two secular exemptions, one for a very limited number of officers who could not shave for medical reasons and one for undercover officers. Id. at 360. The court found the undercover exemption did not undermine the purpose of the rule and therefore did not impact its general applicability. Id. at 366. However, the secular medical exemption was considered sufficiently parallel to the requested religious exemption such that if the former were accommodated, the latter must also be in order to maintain general applicability. Id. at 364–66. The City of Newark was not able to explain why “religious exemptions threaten important city interests but medical exemptions do not.” Id. at 367. Therefore, heightened scrutiny applied and the city was required to grant the requested religious accommodation.FN11
The Third Circuit followed a two-step analysis to evaluate the potential underinclusiveness or nongenerality of the challenged ordinance. It first identified the governmental purposes that the ordinance was designed to promote or protect and then asked whether it exempted or left unregulated any type of secular conduct that threatened those purposes as much as the religious conduct that had been prohibited. Id. at 366–67. If a law allowed secular conduct to undermine its purposes, then it could not forbid religiously motivated conduct that did the same because this would amount to an unconstitutional “value judgment in favor of secular motivations, but [against] religious motivations.” Id. at 366. However, if the governmental entity could show that exempted secular conduct was sufficiently different in terms of its impact on the purpose of the law, the exemption would not render the law underinclusive. Id. (noting that “the Free Exercise Clause does not require the government to apply its laws to activities that it does not have an interest in preventing”).
[12] Fraternal Order makes it clear that not every secular exemption automatically requires a corresponding religious accommodation. The undercover police exemption did not undermine the purposes of the no-beard policy, and therefore, had it been the only exemption, general applicability would not have been violated and no religious accommodation would have been required (assuming that there was a rational basis behind the ordinance). Thus, the central question under Fraternal Order is whether the secular exemptions threaten the statutory purposes to an equal or greater degree than a religious exemption. Although there may be many secular exemptions to a statute, if none of them undermines the statutory purpose, then even their cumulative weight does not establish underinclusiveness. Yet, in Fraternal Order, only a single narrow health exception was held to be sufficient to establish a violation of general applicability, thus triggering heightened scrutiny, because it was deemed to threaten the secular purpose.
The Third Circuit has applied its Fraternal Order precedent in several subsequent decisions. In Tenafly Eruv Ass’n v. Borough of Tenafly, the court found that the free exercise rights of Orthodox Jews were likely violated when Tenafly prohibited them from affixing “lechis” (thin black strips designating an “eruv” where pushing and carrying is permitted on the Sabbath) to utility poles while allowing other materials such as house numbers to be affixed. 309 F.3d 144, 152, 178 (3d Cir.2002). The exemptions undermined the borough’s apparent purpose of preventing visual clutter. Id. at 172. In Blackhawk v. Pennsylvania, the court held that Pennsylvania violated the Free Exercise Clause by refusing a fee waiver to a Native American who kept a bear for ceremonial purposes when the law, among other things, categorically exempted zoos and nationally recognized circuses from such fees. 381 F.3d 202, 210–11, 214 (3d Cir.2004) (Alito, J.). Although the state argued that exemptions could be justified because they provided a tangible benefit to Pennsylvania wildlife, the court found the challenged fee provisions substantially “underinclusive” with respect to this alleged benefit. Id. at 211–12. In sum, the court concluded:
A law fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated.
Id. at 209.
The Eleventh Circuit applied similar reasoning in holding that a limited secular exemption failed the general applicability test. In Midrash Sephardi, Inc. v. Town of Surfside, the town passed a zoning ordinance “ ‘to provide for retail shopping and personal service needs of the town’s residents and tourists’ “ with the goal of protecting “retail synergy” in the business district. 366 F.3d 1214, 1233, 1235 (11th Cir.2004) (citation omitted). The ordinance excluded religious assemblies from the area, but an exemption was allowed for private clubs and lodges. Id. at 1235. The court found this policy to be underinclusive with respect to the town’s goal of retail synergy because it was “pursued only against religious assemblies, but not other non-commercial assemblies, thus devaluing the religious reasons for assembling.”   Id. at 1234. Echoing the reasoning in Fraternal Order, the court found that these limited exceptions “violate[d] the principles of neutrality and general applicability because private clubs and lodges endanger Surfside’s interest in retail synergy as much or more than churches and synagogues.”   Id. at 1235. As in Fraternal Order, only a single categorical secular exemption was enough to establish underinclusiveness and require heightened scrutiny.
In another case, a federal district court found a University of Nebraska policy with three categorical secular exemptions was not of general applicability and therefore subjected it to strict scrutiny which it ultimately failed. See Rader v. Johnston, 924 F.Supp. 1540 (D.Neb.1996). The university had a parietal rule for freshmen that required them to live on campus, but allowed exemptions for students who were nineteen years or older, married, or living with their parents. Id. at 1546. These categorical exemptions, combined with a general discretionary exemption, together covered more than one third of all freshmen. Id. at 1553. Nonetheless, the university refused to grant an exemption to a religious student who wanted to live off campus at a Christian Student Fellowship house because he believed that on-campus dorms were immoral and would endanger his spiritual life. Id. at 1544–45. This decision was found to violate Rader’s free exercise rights and the university was ordered to refrain from enforcing its policy against him. Id. at 1558; see also Stinemetz v. Kan. Health Policy Auth., 45 Kan.App.2d 818, 252 P.3d 141, 154–56 (Kan.Ct.App.2011) (holding that the First Amendment Free Exercise rights of a Jehovah’s Witness Medicaid beneficiary were violated when she was denied a request for an out-of-state bloodless liver transplant because, although the regulations generally did not cover out-of-state services, they allowed for individual exemptions on a case-by-case basis); Horen v. Commonwealth, 23 Va.App. 735, 479 S.E.2d 553, 557 (Va.Ct.App.1997) (finding a violation of the First Amendment Free Exercise Clause when a Native American medicine woman and her husband were convicted of illegal possession of owl feathers and the statute exempted possession of such feathers by “taxidermists, academics, researchers, museums, and educational institutions”).
By contrast, federal courts have generally found laws to be neutral and generally applicable when the exceptions, even if multiple, are consistent with the law’s asserted general purpose. Thus, in Stormans, Inc. v. Selecky, the Ninth Circuit upheld certain Washington regulations requiring pharmacists to fill all prescriptions over a pharmacist’s objection that providing the Plan B contraceptive would violate her religious beliefs. 586 F.3d 1109, 1115–17 (9th Cir.2009), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 129 S.Ct. 365, 376, 172 L.Ed.2d 249, 262 (2008). Although the regulations contained exemptions where the customer did not pay, supplies were limited, or the pharmacist had a legitimate belief the prescription was fraudulent, the court reasoned that these exceptions did not undermine the goal of “increasing safe and legal access to medications” and thus did not affect the general applicability of the rules. Id. at 1135. In Swanson ex rel. Swanson v. Guthrie Independent School District No. I–L, the Tenth Circuit upheld a school district policy forbidding part-time attendance even though it allowed secular exemptions for fifth-year seniors and special education students. 135 F.3d 694, 697, 701 (10th Cir.1998). The plaintiffs there were parents who wanted their child to learn Christian principles at home but who wished to send their homeschooled daughter to the local public school part-time so she could benefit from classes such as foreign languages, music, and science that her parents felt less competent to teach. Id. at 696. The policy against part-time attendance applied equally to all homeschooled children, regardless of the reason for home schooling. Id. at 698. Although the court emphasized this last point in rejecting the plaintiffs’ claim, it also noted the exemptions in the law (fifth-year seniors and special education students) were consistent with the school district’s overall purpose of not taking on students for whom there was no corresponding state aid. Id. at 698 n. 3. Because state aid was based on the number of full-time students in the district, and only the two exempted categories of part-time students were counted as full-time for state-aid purposes, there were no exemptions for students who did not qualify for state aid, and general applicability was met. Id; see also Combs v. Homer–Ctr. Sch. Dist., 540 F.3d 231, 242 (3d Cir.2008) (finding a homeschooling law to be neutral and of general applicability because it imposed the same standards on everyone who was being homeschooled); Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir.2007) (indicating that “the relevant comparison for purposes of a Free Exercise challenge to a regulation is between its treatment of certain religious conduct and the analogous secular conduct that has a similar impact on the regulation’s aims ”).FN12
With the foregoing authorities in mind, we turn to the ordinance at issue. Zimmerman contends the Mitchell County ordinance is not generally applicable because it carries over exceptions from Iowa Code section 321.442 that undermine the ordinance’s purpose and demonstrate its underinclusivity. FN13 The state law exemptions are as follows:
1. Farm machinery with tires having protuberances which will not injure the highway.
2. Tire chains of reasonable proportions upon any vehicle when required for safety because of snow, ice, or other conditions tending to cause a vehicle to skid.
3. Pneumatic tires with inserted ice grips or tire studs projecting not more than one-sixteenth inch beyond the tread of the traction surface of the tire upon any vehicle from November 1 of each year to April 1 of the following year, except that a school bus and fire department emergency apparatus may use such tires at any time.
Iowa Code § 321.442. Zimmerman asserts these exceptions “undermine the County’s purpose of preventing damage to the roads.”
[13] Upon our review, we find the County’s ordinance lacks sufficient general applicability to bring this case under Smith. Section 321.442(1) is not a problem; it exempts farm machinery tires with protuberances, but only so long as they “will not injure the highway.” Such an exception is consistent with the stated purpose of protecting the County’s roads.FN14 One could argue that sections 321.442(2) and (3) do not defeat the general applicability of the ordinance either. Although they allow the use of tire chains, ice grips, or tire studs, the exemptions are limited in scope (“reasonable proportions,” “not more than one-sixteenth inch beyond the tread of the traction surface of the tire”), and except for buses and emergency vehicles, in timing (“when required for safety because of snow, ice, or other conditions,” “from November 1 of each year to April 1 of the following year”). One could construct an argument, therefore, that the ordinance really serves a mixed purpose: It protects the roads from damage except when necessary for safety reasons.
Yet we believe the effort ultimately fails. School buses are allowed to use ice grips and tire studs year round. It is difficult to see how this secular exemption serves either of the foregoing dual purposes. Moreover, the County declined in September 2009 to regulate various other sources of road damage besides steel wheels. Rather, it chose to prohibit only a particular source of harm to the roads that had a religious origin. For example, although state law contains various limits on the overall weight of vehicles and also limits weight per inch of tire width, see Iowa Code §§ 321.440(2), .463, Mitchell County elected not to cover these matters in its ordinance.
The underinclusion of the ordinance undermines its general applicability. See Blackhawk, 381 F.3d at 209 (noting that a law “fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated” (emphasis added)). We are convinced the underinclusion is “substantial, not inconsequential.” Lukumi, 508 U.S. at 543, 113 S.Ct. at 2232, 124 L.Ed.2d at 497.FN15
[14][15][16][17] D. Application of Strict Scrutiny. Of course, an ordinance can fail the general applicability test and still not amount to a Free Exercise violation. However, the ordinance must then “undergo the most rigorous of scrutiny.” Id. at 546, 113 S.Ct. at 2233, 124 L.Ed.2d at 498. That is, it “must advance ‘ “interests of the highest order” ‘ and must be narrowly tailored in pursuit of those interests.” Id. (citation omitted). The County has the burden to show that the ordinance serves a compelling state interest and is the least restrictive means of attaining that interest. See Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624, 634 (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”).FN16
The district court found that the County has a compelling interest “in protecting the integrity of the county’s roads. This interest not only includes the economic costs of repairing roads, but also the safety and drivability of the roads for all.” We do not decide this issue. See United States v. Oliver, 255 F.3d 588, 589 (8th Cir.2001) (recognizing a compelling governmental interest in preserving the bald eagle population despite a claim that possession of eagles was necessary to the practice of the Sioux faith); Satawa v. Bd. of Cnty. Road Comm’rs, 687 F.Supp.2d 682, 699–700 (E.D.Mich.2009) (holding that highway safety concerns amounted to a compelling state interest justifying the denial of a permit for a Nativity display on a median in the center of a major traffic artery); but see Blackhawk, 381 F.3d at 213–14 (stating it is “doubtful” whether “maintaining the fiscal integrity” of a permit fee system is a compelling state interest); United States v. Hardman, 297 F.3d 1116, 1127 (10th Cir.2002) (stating that “a desire for federal funds is not a compelling interest”).
We are not persuaded, however, that the ordinance is narrowly tailored to achieve the stated objective of road preservation. The photographic evidence does show examples of cracking and marking that, according to the County’s witnesses, resulted from the steel lugs. The county engineer testified that steel wheels hasten deterioration of the County’s roads. He said that “the steel is harder than the aggregates … in the concrete surfaces and the asphalt surfaces, and it will wear that surface off.” On the other hand, the County agreed that Mennonite tractors had driven over hard-surfaced county roads, including both concrete and asphalt roads, for years before the ordinance was enacted. The county engineer admitted that various factors lead to road deterioration,FN17 and he could not quantify the impact of steel wheels on the County’s normal schedule of road repair or resurfacing . FN18
Given the lack of evidence of the degree to which the steel lugs harm the County’s roads, the undisputed fact that other events cause road damage, and the undisputed fact that the County had tolerated steel lugs for many years before 2009, it is difficult to see that an outright ban on those lugs is necessary to serve a compelling state interest. A more narrowly-tailored alternative might allow steel wheels on county roads in some circumstances, while establishing an effective mechanism for recouping the costs of any necessary road repairs if damage occurs. Indeed, an adjoining county reached an agreement with the Mennonite community to accept a financial deposit in a trust arrangement to cover possible road damage, in lieu of banning steel wheels. See (minutes of December 7, 2009 Board of Supervisors Meeting); Jean Caspers–Simmet, Howard County Crafts Agreement Over Steel–Wheel Tractors, Agri News, Dec. 1, 2009, http:// www.agrinews . com/howard/county/crafts/agreement/over/steelwheel /tractors/story–1056.html. As the United States Supreme Court has indicated in a statutory case arising under the Religious Freedom Restoration Act, the compelling interest test must focus on “the harms posed by the particular use at issue here.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432–33, 126 S.Ct. 1211, 1221–22, 163 L.Ed.2d 1017, 1032–33 (2006) (finding the compelling interest test would not sustain application of the Controlled Substances Act to approximately 130 American members of a Christian Spiritist sect who used hoasca, a tea containing a hallucinogen, for communion).
A comparison can be drawn between the present case and a series of cases that have arisen over state-law requirements for special signage on slow moving vehicles. In State v. Hershberger, 444 N.W.2d 282 (Minn.1989), cert. granted, judgment vacated, 495 U.S. 901, 110 S.Ct. 1918, 109 L.Ed.2d 282 (1990), and State v. Miller, 202 Wis.2d 56, 549 N.W.2d 235 (Wis.1996), members of the Old Order Amish faith challenged state laws that required their horse-drawn buggies to display fluorescent red and orange “slow moving vehicle” signs.
Hershberger was a pre-Smith case. There the court applied a compelling state interest test and acknowledged for purposes of the case that highway safety was a compelling interest, but invalidated the sign requirement after concluding that the use of silver reflective tape and lighted red lanterns, as proposed by the church members, would adequately address the same safety concerns. Hershberger, 444 N.W.2d at 288–89. In Miller, interpreting the Wisconsin Constitution rather than the United States Constitution, the court also applied a compelling state interest test. Similar to the Minnesota court, the Wisconsin court concluded that “the State has failed to demonstrate that public safety on the highways cannot be served by the Respondents’ proposed less restrictive alternative of the white reflective tape and the red lantern.” Miller, 549 N.W.2d at 242.
While the analogy between those cases and the present steel wheels case is not a perfect one, the same basic analytical framework applies here. The question here is whether the County’s goal of road preservation can be accomplished less restrictively without banning the tractors used by the Mennonites. On this record, we believe it can be. We therefore hold that the application of the Mitchell County road protection ordinance to Matthew Zimmerman violates his rights of free exercise of religion under the First Amendment to the United States Constitution. We need not and do not reach the question whether Zimmerman’s rights under article I section 3 of the Iowa Constitution have also been violated.

Ethics and Business Decision Making

Case 2.1

La.App. 2 Cir.,2012.
Johnson Const. Co., Inc. v. Shaffer
— So.3d —-, 2012 WL 638058 (La.App. 2 Cir.), 46,999 (La.App. 2 Cir. 2/29/12)
Court of Appeal of Louisiana,
Second Circuit.
Bubba SHAFFER d/b/a Shaffer’s Auto & Diesel Repair, Defendant–Appellant.
No. 46,999–CA.
Feb. 29, 2012.
Shaffer’s Auto and Diesel Repair, L.L.C. (“Shaffer”) appeals the judgment of the Shreveport City Court, Parish of Caddo, State of Louisiana, in favor of Johnson Construction Company, Inc. (“Johnson Construction”). For the following reasons, we affirm the trial court’s judgment.
At issue in this appeal is whether an agreement existed between Johnson Construction and Shaffer for the price of repairs to a 1979 Ford dump truck. In March 2007, Johnson Construction’s truck needed repairs; among other things, it was leaking oil and water. John Robert Johnson, Jr., the president of Johnson Construction, took the truck along with a 15–ton lowboy trailer to Shaffer for the repairs. The truck was reportedly fixed and Johnson paid the initial bill; however, the truck continued to have the same problems. Mr. Johnson returned to Shaffer with the truck; again, the repairs were reported to be made and Mr. Johnson paid the bill. The mechanical problems with the truck continued, and in July 2007, Mr. Johnson returned to Shaffer a third time and left the truck and trailer. Although Mr. Johnson believed he had been given an estimate of $1,000 for the repairs, he was ultimately sent an invoice for $5,863.49 by Shaffer. Mr. Johnson offered to settle the matter for the amount of the initial estimate plus the cost of the parts and shipping—a total of $2,480. Shaffer did not respond to the offer, and refused to return Johnson Construction’s truck or trailer until full payment of the invoice was made, plus storage fees of $50 a day and 18% interest.
Johnson Construction filed suit against Shaffer alleging that its action in withholding his truck and trailer amounted to an unfair trade practice pursuant to La. R.S. 51:1405, et seq., and the matter proceeded to trial. After a trial of the matter, the court concluded that the evidence showed that Mr. Johnson had been quoted a price of $1,000 by Shaffer for the repair work, and Mr. Johnson had not been informed by Shaffer that additional engine work would be performed at an additional cost. Further, the trial court determined that Shaffer had acted deceptively in maintaining possession of Johnson Construction’s trailer on which it had performed no work. Accordingly, the trial court awarded Johnson Construction $3,500 in damages under the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1405, et seq., and $750 in attorneys’ fees. Shaffer was awarded $1,000 (the amount of the initial estimate as determined by the trial court) and ordered to release Johnson’s truck and trailer immediately. This appeal by Shaffer ensued.
The Parties’ Agreement
[1] On appeal, Shaffer raises several assignments of error. First, he argues that the trial court erred in failing to award him the full amount of his invoice (i.e., $5,863.49) and his reasonable storage fees for the truck and trailer. At the outset we point out that Mr. Johnson maintained he had a verbal agreement with Bubba Shaffer, the owner of Shaffer’s Auto Diesel & Repair, that the repairs to the truck would cost $1,000. Mr. Johnson also testified that he was not informed otherwise. On the other hand, Mr. Shaffer disputed that an agreement for the price of the repairs was ever reached and maintained that Johnson Construction owed the full amount of the invoice.
[2][3][4] The existence or nonexistence of a contract is a question of fact, and the finder of fact’s determination may not be set aside unless it is clearly wrong. Red River International, Inc. v. Pierce, 44,869 (La.App.2d Cir.10/28/09), 26 So.3d 196. Furthermore, when there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed if the factfinder’s conclusions were reasonable under the evidence. Menard v. Lafayette Ins. Co., 2009–1869 (La .03/16/10), 31 So.3d 996; Johnson v. City of Shreveport, 45,819 (La.App.2d Cir.12/29/10), 56 So.3d 1059. A factfinder’s decision that is based on its discretion to credit the testimony of one of two or more witnesses can virtually never be wrong. Menard, supra .
[5] To enforce an oral agreement pertaining to something priced or valued in excess of $500, the contract must be proved by at least one witness and other corroborating circumstances. La. C.C. art. 1846. A party to the action may be a credible witness, and the other corroborating circumstances need only be general in nature. Smith v. Dishman & Bennett Speciality Co., 35,682 (La.App.2d Cir.01/23/02), 805 So.2d 1220.
If the trial court’s conclusion in this matter was reasonable in light of the evidence, we may not reverse its judgment. At the trial of the matter, the trial court was presented with testimony from Mr. Johnson, Mr. Shaffer, and Michael Louton, a mechanic employed by Shaffer. After consideration of the testimony and evidence, the trial court issued thorough reasons for judgment, in which it noted its belief that Mr. Johnson did not authorize Shaffer to perform the additional repairs to the truck, and that the repairs performed were not actually part of the original agreement. The trial court also believed that Mr. Johnson had received a verbal quote of $1,000 for the repairs to the truck, and he did not give authorization to tear the engine down (which was the reason for the additional charges). The trial court did not believe Mr. Johnson was informed of the cost for the additional work.
Considering the trial court’s reasons for judgment, along with our review of the record, we cannot say that the trial court was clearly wrong in its determination. Although there were corroborating circumstances to support both parties’ contentions, the trial court was clearly within its discretion to credit the testimony of Mr. Johnson over that of Mr. Shaffer and Mr. Louton. Notably, whether there was an initial verbal agreement that the repairs would cost $1,000 was subject to a credibility call by the trial court, which heard testimony from the involved parties. The trial court viewed Mr. Shaffer’s testimony on the issue as “disingenuous,” and we cannot see where that was in error. Therefore, the trial court was not in error in (1) determining that an agreement existed between the parties regarding the price for repairs and (2) refusing to award Shaffer the full amount of its invoice in the amount of $5,863.49.FN1
[6] As for the amount that Shaffer contends is due for storage, had it invoiced Mr. Johnson the amount of the original estimate in the first place, there would have been no need to store the truck or trailer. Considering the trial court’s determination that an agreement existed between Mr. Johnson and Shaffer in the amount of $1,000, which Mr. Johnson had expressed a willingness to pay, we cannot see how Shaffer would be entitled to any payment for storage when it failed to return the truck and trailer where an offer of payment for the agreed upon price had been conveyed. In other words, the need to store Johnson Construction’s truck and trailer was created by Shaffer. Thus we see no error in the trial court failing to award Shaffer storage fees for the truck and trailer.
Unfair Trade Practices Claim
[7] Shaffer also argues that the trial court erred in awarding damages and attorneys’ fees to Johnson Construction under Louisiana’s Unfair Trade Practices and Consumer Protection Law (“LUTPA”).
[8] LUTPA, La. R.S. 51:1401, et seq., does not enumerate those instances of conduct that constitute unfair trade practices, but La. R.S. 51:1405(A) provides that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” What constitutes an unfair trade practice is determined on a case-by-case basis. Tyler v. Rapid Cash, LLC, 40,656 (La.App.2d Cir.05/17/06), 930 So.2d 1135; A & W Sheet Metal, Inc. v. Berg Mechanical, Inc., 26,799 (La.App.2d Cir.04/05/95), 653 So.2d 158. In Berg, this court explained:
Conduct is deemed unlawful if it involves fraud, misrepresentation, deception, breach of fiduciary duty, or other unethical conduct. A practice is unfair when it offends established public policy and when the practice is unethical, oppressive, unscrupulous, or substantially injurious to consumers, including business competitors.
Id., at 164 (citations omitted).
Here, the trial court determined that Shaffer had engaged in unfair trade practices when it refused to release Johnson Construction’s trailer on which Shaffer had performed no work. The trial court noted that the evidence showed that Mr. Johnson had made demand on Shaffer to release the trailer and that no repairs had been made on the trailer. The trial court further observed that under La. R.S. 9:4501, Shaffer would not have a repairman’s privilege over property upon which no repairs were made. We agree.
Louisiana R.S. 9:4501(A) provides, in pertinent part:
Any person operating a garage or other place where automobiles or other machinery are repaired, or parts therefor are made or furnished, has a privilege upon the automobile or other machinery for the amount of the cost of repairs made, parts made or furnished, and labor performed. If an estimate was given by the repairman for the repairs, then in order for the amount of the privilege to exceed the amount of the estimate, the repairman must secure authorization to exceed the amount of the estimate[.](Emphasis added).
Considering that Shaffer performed no repairs on the trailer, the repairman’s privilege allowed under La. R.S. 9:4501 was inapplicable as to that piece of equipment. See Van–Trow Olds Cadillac, Inc. v. Kahn, 345 So.2d 991 (La.App. 2d Cir.1977).
So considering, we see no error in the trial court’s characterization of Shaffer’s actions with the trailer as holding it “hostage in an effort to force payment for unauthorized repairs.” In Slayton v. Davis, 2004–1652 (La.App. 3rd Cir.05/11/05), 901 So.2d 1246, the appeal court concluded that the wrongful seizure of a vehicle was an unfair trade practice under La. R.S. 51:1405. Although the facts of Slayton are not precisely on point, we believe it to be analogous to the situation at hand. Shaffer had no legal right to retain possession of the trailer, yet it refused to release it to Johnson Construction. Thus, the trial court did not err in its determination that Shaffer’s retention of Johnson Construction’s trailer was a deceptive conversion of the trailer.
[9][10] Shaffer also argues that the trial court erred in awarding Johnson Construction general damages in the amount of $3,500 for the “nearly four year unlawful conversion of [its] trailer.” Louisiana R.S. 51:1409(A) provides, in pertinent part:
Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs[.]
As noted by the trial court, Johnson Construction did not provide evidence of the precise value of its loss sustained as a result of its deprived use of the trailer. However, “actual damages” as provided in the statute does not require a precise measurement of the damage—only an “ascertainable loss.” Furthermore, recovery of general damages is allowed under LUTPA. Slayton, supra at 1255. Here, it is obvious that Johnson Construction suffered a loss. Shaffer retained possession of the trailer for four years, which most certainly had some impact on Johnson Construction’s ability to carry on its business. Despite the fact that Mr. Johnson failed to present a precise value of the loss of use for his trailer, considering the length of time that Shaffer retained it and the amount of the award, we do not believe that the trial court abused its discretion in awarding Johnson Construction general damages in the amount of $3,500.
[11] Finally, Shaffer maintains that the trial court erred in its award of $750 in attorneys’ fees to Johnson Construction. Louisiana R.S. 51:1409 mandates an award of reasonable attorney fees and costs to the person bringing the action. Although Mr. Johnson ultimately represented his company pro se at the time of trial, he was initially represented by an attorney who prepared the original petition and, later, an amended petition. When Johnson Construction’s attorney eventually withdrew from its representation, it was not for a failure to pay by Mr. Johnson, so it can be assumed that the attorney was paid some amount of his fee for the legal work performed. We do not believe the trial court’s award of $750 in attorneys’ fees was in error, considering that Johnson Construction had been represented at some time in the litigation and had presumably paid some amount in attorneys’ fees to its counsel of record.
For the foregoing reasons, the judgment of the trial court in favor of Johnson Construction Company, Inc. is affirmed. All costs of this appeal are assessed to Shaffer’s Auto and Diesel Repair, L.L .C.
FN1. Although Shaffer noted in brief that Mr. Johnson, after receiving the invoice, had offered to pay the initial $1,000 plus the additional amounts for parts and shipping (a total of $2480), Shaffer has not argued that, alternatively, it was entitled to at least that amount. Notably, Mr. Johnson’s offer to modify the initial $1,000 agreement went unanswered; thus, there was no modification of that agreement.

Courts and Alternative Dispute Resolution

Case 3.1

Southern Prestige Industries, Inc. v. Independence Plating Corp.
690 S.E.2d 768, 2010 WL 348005 (N.C.App.)
Court of Appeals of North Carolina.
SOUTHERN PRESTIGE INDUSTRIES, INC., a North Carolina corporation, Plaintiff-appellee
INDEPENDENCE PLATING CORPORATION, a New Jersey corporation, Defendant-appellant.
No. COA09-888.
Feb. 2, 2010.
Independence Plating Corporation (“defendant”) appeals an order denying its motion to dismiss for lack of personal jurisdiction. We affirm.
The facts in the instant case are undisputed. Defendant is a New Jersey corporation that provides anodizing services. Defendant’s only office and all of its personnel are located in the state of New Jersey. Defendant does not advertise or otherwise solicit business in North Carolina. Prior to July 2007, defendant had engaged in a long-standing business relationship with Kidde Aerospace (“Kidde”), a North Carolina company.
In July 2007, on the recommendation of Kidde, Southern Prestige Industries, Inc. (“plaintiff”), a North Carolina corporation, contacted defendant to establish a business relationship. Under the terms of the arrangement between plaintiff and defendant, plaintiff would ship specified machined parts from its location in Statesville, North Carolina to defendant’s location in New Jersey for anodizing. After the parts were anodized by defendant, they were shipped back to plaintiff, unless plaintiff otherwise directed. Plaintiff would then send the parts to the end user, Kidde.
Plaintiff and defendant engaged in frequent transactions between 27 July 2007 and 25 April 2008. In all, the record reveals thirty-two purchase orders and invoices totaling $21,018.70. All invoices were sent from defendant in New Jersey to plaintiff in North Carolina and were paid by checks issued from plaintiff’s corporate account at Piedmont Bank in Statesville, North Carolina.
On 18 November 2008, plaintiff initiated an action for breach of contract in Iredell County Superior Court. Plaintiff alleged that defects caused by defendant’s anodizing process caused plaintiff’s machined parts to be rejected by Kidde. On 6 February 2009, defendant filed, with a supporting affidavit, a motion to dismiss pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(2) (2007) for lack of personal jurisdiction. On 18 March 2009, plaintiff filed an affidavit, with supporting exhibits, challenging the assertions in defendant’s motion to dismiss. On 4 May 2009, after reviewing the evidence submitted by the parties, the trial court entered an order denying defendant’s motion to dismiss. Defendant appeals.
Defendant’s only argument on appeal is that the trial court erred in denying its motion to dismiss for lack of personal jurisdiction. Specifically, defendant argues there are insufficient contacts to satisfy the due process of law requirements that are necessary to subject defendant to the personal jurisdiction of North Carolina’s courts. We disagree.
As an initial matter, we note that the denial of a motion to dismiss is generally deemed interlocutory and therefore not subject to immediate appeal. However, “[t]he denial of a motion to dismiss for lack of jurisdiction is immediately appealable.” Bruggeman v. Meditrust Acquisition Co., 138 N.C.App. 612, 614, 532 S.E.2d 215, 217 (2000) (citing N.C. Gen.Stat. § 1-277(b)).
Neither party contests the findings of fact contained in the trial court’s order. “Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” National Util. Review, LLC v. Care Ctrs., Inc., —N.C.App. —-, —-, 683 S.E .2d 460, 463 (2009)(internal quotation and citation omitted). Therefore, the only issue to be determined is “whether the trial court’s findings of fact support its conclusion of law that the court has personal jurisdiction over defendant. We conduct our review of this issue de novo.” Id. (internal quotations and citations omitted).
North Carolina courts utilize a two-prong analysis in determining whether personal jurisdiction against a non-resident is properly asserted. Under the first prong of the analysis, we determine if statutory authority for jurisdiction exists under our long-arm statute. If statutory authority exists, we consider under the second prong whether exercise of our jurisdiction comports with standards of due process.
Baker v. Lanier Marine Liquidators, Inc., 187 N.C.App. 711, 714, 654 S.E.2d 41, 44 (2007)(internal citations omitted).
Defendant has conceded that the facts are sufficient to confer jurisdiction under N.C. Gen.Stat. § 1-75.4 (2007), the North Carolina long-arm statute. Therefore, “the inquiry becomes whether plaintiffs’ assertion of jurisdiction over defendants complies with due process.” Baker, 187 N.C.App. at 715, 654 S.E.2d at 44 (internal quotation and citation omitted).
In order to satisfy due process requirements, there must be “certain minimum contacts [between the non-resident defendant and the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ “ International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L.Ed. 95, 102 (1945)(quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L.Ed. 278, 283 (1940)). In order to establish minimum contacts with North Carolina,
the defendant must have purposefully availed itself of the privilege of conducting activities within the forum state and invoked the benefits and protections of the laws of North Carolina. The relationship between the defendant and the forum state must be such that the defendant should reasonably anticipate being haled into a North Carolina court.
Baker, 187 N.C.App. at 715, 654 S.E.2d at 45 (citation omitted).
The United States Supreme Court has recognized two bases for finding sufficient minimum contacts: (1) specific jurisdiction and (2) general jurisdiction. Specific jurisdiction exists when the controversy arises out of the defendant’s contacts with the forum state. General jurisdiction may be asserted over a defendant even if the cause of action is unrelated to defendant’s activities in the forum as long as there are sufficient ‘continuous and systematic’ contacts between defendant and the forum state.
Banc of Am. Secs. LLC v. Evergreen Int’l Aviation, Inc., 169 N . C.App. 690, 696, 611 S.E.2d 179, 184 (2005) (internal quotations and citations omitted). In the instant case, the record does not support a finding of general jurisdiction and so it must be determined whether specific jurisdiction exists.
For specific jurisdiction, the relationship among the defendant, the forum state, and the cause of action is the essential foundation for the exercise of in personam jurisdiction. Our courts look at the following factors in determining whether minimum contacts exist: (1) the quantity of the contacts, (2) the nature and quality of the contacts, (3) the source and connection of the cause of action to the contacts, (4) the interest of the forum state, and (5) the convenience to the parties.
Id. (internal quotation and citations omitted).
In the instant case, the trial court found that the parties “had an ongoing business relationship characterized by frequent transactions between July 27, 2007 and April 25, 2008, as reflected by 32 purchase orders.” Plaintiff would ship machined parts to defendant, who would then anodize the parts and return them to plaintiff in North Carolina. Defendant sent invoices totaling $21,018.70 to plaintiff in North Carolina, and these invoices were paid from plaintiff’s corporate account at a North Carolina bank. Plaintiff filed a breach of contract action against defendant because the machined parts that were shipped to defendant from North Carolina and then anodized by defendant and shipped back to North Carolina were defective.
“It is generally conceded that a state has a manifest interest in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. Thus, North Carolina has a ‘manifest interest’ in providing the plaintiff ‘a convenient forum for redressing injuries inflicted by’ defendant, an out-of-state merchant.” Baker, 187 N.C.App. at 716, 654 S.E.2d at 45 (internal quotations and citation omitted). As for the remaining factor, there is no evidence in the record that would indicate that it is more convenient for the parties to litigate this matter in a different forum. “Litigation on interstate business transactions inevitably involves inconvenience to one of the parties. When [t]he inconvenience to defendant of litigating in North Carolina is no greater than would be the inconvenience of plaintiff of litigating in [defendant’s state] … no convenience factors … are determinative[.]” Cherry Bekaert & Holland v. Brown, 99 N.C.App. 626, 635, 394 S.E.2d 651, 657 (1990)(internal quotations and citations omitted).
Therefore, after examining the ongoing relationship between the parties, the nature of their contacts, the interest of the forum state, the convenience of the parties, and the cause of action, we conclude defendant has “purposely availed” itself of the benefits of doing business in North Carolina and “should reasonably anticipate being haled” into a North Carolina court. We hold that defendant has sufficient minimum contacts with North Carolina to justify the exercise of personal jurisdiction over defendant without violating the due process clause.

Torts and Cyber Torts

Case 4.1

Cal.App. 2 Dist.,2012.
Shoyoye v. County of Los Angeles
203 Cal.App.4th 947, 137 Cal.Rptr.3d 839, 12 Cal. Daily Op. Serv. 2285, 2012 Daily Journal D.A.R. 2491
Court of Appeal, Second District, Division 4, California.
Adetokunbo SHOYOYE, Plaintiff and Appellant,
COUNTY OF LOS ANGELES, Defendant and Appellant.
No. B223542.
Feb. 23, 2012.
Defendant, the County of Los Angeles (County), appeals from a judgment after jury verdict in favor of plaintiff Adetokunbo Shoyoye arising out of Shoyoye’s wrongful detention in County jail. The County acknowledges that although its initial detention of Shoyoye was justified, it over-detained him by about 16 days as a result of unintentional clerical error. The County contends on appeal that the evidence presented at trial was insufficient to support a verdict in favor of Shoyoye pursuant to Civil Code section 52.1 (the Tom Bane Civil Rights Act).FN1 In this case of first impression, we agree and conclude that not every wrongful detention is a violation of section 52.1. The evidence here was insufficient to establish the “threats, intimidation, or coercion” necessary to implicate section 52.1. Accordingly, we reverse the judgment as to that cause of action, and reverse the award of attorney fees made pursuant to that statute. We affirm the judgment and damage award in favor of Shoyoye on his claim for false imprisonment.
FN1. All further undesignated statutory references are to the Civil Code.
The Operative Complaint
Plaintiff’s third amended complaint alleged causes of action for (1) violations of Penal Code section 1384; (2) false imprisonment; (3) violation of section 52.1; (4) violation of 42 United States Code section 1983; and (5) negligence and negligence per se. The trial court granted the County’s motion for nonsuit as to the 42 United States Code section 1983 cause of action, and prior to the case being submitted to the jury, the parties agreed that they would present for the jury’s consideration only the causes of action for false imprisonment and violation of section 52.1.
Shoyoye’s Arrest and Incarceration
The evidence presented at trial included the following undisputed facts. Shoyoye was lawfully arrested on August 19, 2007, when he was reporting an unrelated incident to the police, and the police discovered he had two outstanding warrants.FN2 The first warrant related to his failure to address a citation he received for riding the subway without a ticket, and the second warrant arose when a former roommate stole his identity and was convicted of grand theft under Shoyoye’s name. Shoyoye was incarcerated, and shortly thereafter he appeared in court and was ordered released on the first warrant. A few days later he appeared on the second warrant in a different court, and that matter was also resolved in his favor. On August 22, 2007, he was ordered released, subject to any other holds. He was transported back to Men’s Central Jail, where he was processed and placed in a dormitory, expecting to be released at any time.
FN2. Shoyoye conceded that there was probable cause for his arrest and initial detention.
The Error Resulting in Shoyoye’s Over–Detention
A County employee mistakenly attached to Shoyoye’s paperwork information pertaining to a parolee scheduled to be sent to state prison for violating the terms of his parole. The other prisoner’s name was Marquis Lance Parsee. A Department of Corrections (“DCL”) hold intended for Parsee was entered into the County Sheriff’s computer system regarding Shoyoye. A subsequent quality control check failed to detect the error. If a County employee had looked at the paper file on Shoyoye rather than the computer records, he or she would have realized that the DCL hold did not pertain to Shoyoye.
Shoyoye’s Efforts to Be Released, and the County Employees’ Treatment of Him
While he was at Men’s Central Jail, Shoyoye attempted to ask one deputy or another almost every day about being released, but he received no assistance. Shoyoye was then transferred to the Pitchess Detention Center in Castaic, where he was processed and assigned a bed in a dormitory. He did not understand why he was not being released.
Shoyoye asked a total of six to eight people for assistance during his incarceration. At Pitchess Detention Center, inmates were periodically permitted to submit one written question on a “yellow sheet” form. Shoyoye submitted such a form asking, “Why am I here?” He received the response that he was subject to a “DCL hold.” He submitted another form inquiring what a “DCL hold” was, along with one other question, and received the response that he was only entitled to ask one question and he had asked two. He submitted other yellow sheets indicating he believed he should not be there, but he received no helpful responses.
Shoyoye told custody assistant Lawrence Wong that he thought he should be released. Wong acknowledged that if what he said was true, then there was a problem. Wong told him to talk to Deputy Niels Gittisarn. Shoyoye asked him for assistance, and Gittisarn told him, “Get back to me.” However, when Shoyoye attempted to speak to him the next day, Gittisarn rebuffed him, yelling that he was busy. Other inmates accused Shoyoye of being an informant when they saw him talking to Gittisarn, and thereafter he was hesitant to approach any County employees for fear of being labeled an informant.
Shoyoye asked a deputy named Rodriguez what a DCL hold was, and Rodriguez replied, “[T]hat means that you are going to prison, boy.” Rodriguez asked what he had done, and when Shoyoye said it was for not having a ticket on the subway, Rodriguez lost interest.
Shoyoye attended a church service in order to speak to the jail chaplain about his plight. The chaplain listened sympathetically, but did not offer assistance.
Deputy Oren Son monitored the laundry facility where Shoyoye worked. Shoyoye told him that he was being held for a felony he did not commit. Son looked at him as he spoke, but then returned to the book he was reading and gave him the silent treatment for a few minutes, until Shoyoye eventually gave up and walked away. Shoyoye knew that if a laundry worker took breaks or refused to work, he would be subjected to harsh housing discipline and suspension of privileges. Shoyoye asked a civilian employee who worked in the laundry facility, Patsy Hazlett, for assistance after she praised him for good work performance, but she said she could not help him.
Asked if any of his efforts resulted in anything being done to determine his over-detention status, he replied, “All I got was disinterest, being sent away. No. Nothing was done.” He felt that he had failed to make himself heard, that although he was civil and polite he got nowhere: there was no “ ‘customer service,’ if you will.” He described the deputies as walking and talking tough. Shoyoye thought about escaping but feared he would get shot; he never seriously considered doing so.
Incident to his incarceration, Shoyoye was subjected to strip searches that included anal cavity searches, required to wait naked in line to shower in close proximity to other inmates, and shackled. On one occasion, he was showering when he was approached by an aggressive inmate, and he immediately fled the shower room, still covered in soap. He witnessed criminal activity and fights, and was housed in a large dormitory with hundreds of inmates, many of whom were gang members. He did not drink water because the commode was connected directly to the drinking fountain. He was exposed to a chicken pox outbreak. He feared being sent to prison, or put into “the hole” for further discipline, or having physical force or violence used against him. He was mistaken for an informant by other inmates and feared what they might do to him.
Shoyoye’s Release
Shoyoye’s roommate, Rudy Ramirez, located him at Pitchess Detention Center and visited him there. Shoyoye asked Ramirez to contact Shoyoye’s boss, Benjamin Swett, and Ramirez did so. Eventually Swett contacted a state assemblyman’s office, and was put in touch with Renee Hansen, the Chief of Legislative Affairs for the California Department of Corrections and Rehabilitation (CDCR). She located Shoyoye in the County’s website, and found a reference to a CDCR number. She telephoned the inmate locator for CDCR and inquired to whom that CDCR number pertained, and was told it was Marquis Parsee. She then ascertained that Parsee was also being held in the County jail, under the same parole hold number as Shoyoye. She contacted the County jail and informed them of her suspicion that they had applied an erroneous parole hold number to Shoyoye. They concluded she was correct, and immediately took steps to effect Shoyoye’s release. Shoyoye was released on September 7, 2007, 16 days after he had been ordered released on August 22, 2007.
The Verdict, the Judgment, and the Posttrial Motions
A special verdict form was submitted to the jury. The jury answered each of the following questions in the affirmative: (1) “Did the County of Los Angeles hold [Shoyoye] in custody?”; (2) “Was there an unnecessary delay in releasing [Shoyoye]?”; (3) “Was the County of Los Angeles’ conduct a substantial factor in causing harm to [Shoyoye]?”; (4) “Did the employee(s) of the County of Los Angeles intentionally act or fail to act with [respect to Shoyoye’s] right to be free from the unreasonable seizure by actual or implied use of threats, intimidation or coercion?”; and (5) “Was the County of Los Angeles’ employee(s’) conduct in violating plaintiff [Shoyoye’s] right to be free from unreasonable seizures a substantial factor in causing harm to [Shoyoye]?” The jury awarded Shoyoye $22,700 in economic damages for past and future lost earnings and property loss, and $180,000 in noneconomic damages for past and future pain and suffering.
The court pointed out to counsel that “issues could be raised that the damages go to separate causes of action. And these are distinctly different causes of action.” The court inquired whether counsel wanted to direct the jury to indicate whether the damages it awarded were as to each cause of action. Shoyoye’s counsel objected to any apportionment request, while counsel for the County was in favor of it. The court decided not to seek further elaboration or apportionment from the jury. The court entered judgment in favor of Shoyoye on February 1, 2010.
The County then filed a motion for judgment notwithstanding the verdict and a motion for new trial, arguing that the evidence at trial was insufficient as a matter of law to support the jury’s verdict regarding the section 52.1 claim because Shoyoye failed to present any evidence that County employees violated his constitutional rights by the use of threats, intimidation, or coercion. Extensive briefing of the issue ensued.
[1] Ultimately, the court denied the County’s posttrial motions. Thereafter, the County filed a timely notice of appeal from both the judgment and the order denying its posttrial motions.FN3
FN3. We reject Shoyoye’s contention that the County admitted liability at trial and has therefore forfeited any argument to the contrary. Shoyoye concedes, and the record makes clear, that defense counsel argued that any violation of plaintiff’s constitutional rights was not intentional, but due to a mistake, and was not accomplished by means of threats, intimidation, or coercion.
Without specifically deciding the issue, we assume for purposes of this opinion that a constitutional violation occurred and that Shoyoye was unreasonably detained beyond the time detention was justified.
I. Standard of Review
Denial of defendant’s motion for judgment notwithstanding the verdict is reviewed to determine whether substantial evidence supports the jury verdict. (Dell’Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 554–555, 71 Cal.Rptr.3d 737.)
“Under [the substantial evidence] standard of review, our duty ‘begins and ends’ with assessing whether substantial evidence supports the verdict. [Citation.] ‘[The] reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ [Citation.] We review the evidence in the light most favorable to the respondent, resolve all evidentiary conflicts in favor of the prevailing party and indulge all reasonable inferences possible to uphold the jury’s verdict. [Citation.]” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 908, 28 Cal.Rptr.3d 894.) However, issues of statutory interpretation and of application of a statute to undisputed facts are reviewed de novo. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284, 73 Cal.Rptr.2d 596.)
II. Statutory Interpretation
We begin with the language of section 52.1, sometimes referred to as the Tom Bane Civil Rights Act. It provides in relevant part as follows:
“(a) If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured….
“(b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.” The statute further provides in subdivision (h) that “In addition to any damages, injunction, or other equitable relief awarded in an action brought pursuant to subdivision (b), the court may award the petitioner or plaintiff reasonable attorney’s fees.”
Throughout the pendency of this matter, Shoyoye has predicated the County’s liability under section 52.1 solely on a claim of interference with either the Fourth Amendment to the United States Constitution or article I, section 13 of the California Constitution, which both pertain to the right of the people to be secure against unreasonable searches and seizures.FN4
FN4. Although the parties discuss whether the County is a person within the meaning of the statute, we do not find it necessary to answer that question in order to resolve this appeal.
[2][3][4] “The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law. (Jones [v. Kmart Corp. (1998) ] 17 Cal.4th [329,] 334 [70 Cal.Rptr.2d 844, 949 P.2d 941] [Jones ].)” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883, 57 Cal.Rptr.3d 454.) The legislative history of section 52.1, enacted in 1987, makes clear that the crucial motivation behind passage of section 52.1 was to address the increasing incidence of hate crimes in California. (Stats.1987, c. 1277, § 3 (A.B.63). See Jones, supra, at p. 338, 70 Cal.Rptr.2d 844, 949 P.2d 941.) However, the statutory language does not limit its application to hate crimes. Notably, the statute does not require a plaintiff to allege the defendant acted with discriminatory animus or intent based upon the plaintiff’s membership in a protected class of persons. (Cf. § 51.7; Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841–843, 11 Cal.Rptr.3d 692, 87 P.3d 1 (Venegas II ).) A defendant is liable if he or she interfered with or attempted to interfere with the plaintiff’s constitutional rights by the requisite threats, intimidation, or coercion. (Venegas II, supra, at p. 843, 11 Cal.Rptr.3d 692, 87 P.3d 1.)
In Venegas II, sheriff’s deputies stopped a car in which a husband and wife were driving, based on the husband’s resemblance to a suspect in an ongoing investigation of an automobile theft ring. The car had no license plates or visible vehicle identification number. The husband informed the officers that he was the brother of the person they were looking for, but when asked to produce identification he said it was at his home nearby. He declined to sign an entry and search waiver form to allow the officers to enter his home and retrieve his identification, instead agreeing the officers could accompany his wife to their home to get it. One officer assured the couple their home would not be searched. However, upon reaching the home, the officers convinced the wife to sign a broadly worded entry and search waiver form granting them authority to enter the house and conduct a search. Officers searched the entire house and found papers showing the husband was on felony probation. They directed the officers detaining the husband to arrest him for a misdemeanor Vehicle Code violation and for violating his probation; he was later booked into custody. The officers detained the wife for two hours but did not arrest her or charge her with anything. They determined the following day that the car was not stolen, and directed that the husband be released from custody. He was released two days later; no charges were ever filed against him. The husband and wife filed an action against individual officers involved in the incident, the City and County, and the County sheriff’s department. The plaintiffs’ complaint included causes of action on the husband’s behalf under section 52.1, and for false detention and arrest. (Venegas II, supra, 32 Cal.4th at pp. 827–828, 11 Cal.Rptr.3d 692, 87 P.3d 1.) The matter was tried, and the trial court granted nonsuit in favor of defendants. (Id. at p. 828, 11 Cal.Rptr.3d 692, 87 P.3d 1.)
The Supreme Court reversed, holding that the trial court erred in requiring the plaintiffs to allege they were members of a protected class in order to maintain a cause of action under section 52.1 based on unreasonable search and seizure. “According to County, the section applies only to so-called hate crimes and requires a showing, not alleged here, that the defendants acted with ‘discriminatory animus,’ i.e., an intent to threaten or coerce another in violation of their constitutional rights, based on the victim’s actual or apparent racial, ethnic, religious, or sexual orientation or other minority status. [Citation.] We disagree, as nothing in Civil Code section 52.1 requires any showing of actual intent to discriminate.” (Venegas II, supra, 32 Cal.4th at p. 841, 11 Cal.Rptr.3d 692, 87 P.3d 1.) The Supreme Court noted that section 52.1, subdivision (g) states that an action brought under that section is “independent of any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law,” including section 51.7, which does require allegations of violence or intimidation because of the victim’s actual or apparent characteristics (for example, race, sexual orientation, or disability). (Venegas II, supra, at pp. 841–842, 11 Cal.Rptr.3d 692, 87 P.3d 1.) Indeed, section 52.1 was amended in 2000 to add language to subdivision (g) in order to clarify that the section applies to an affected plaintiff without regard to his or her membership in a protected class. (Stats.2000, ch. 98, § 3; Venegas II, supra, at p. 842, 11 Cal.Rptr.3d 692, 87 P.3d 1.)
The Venegas court acknowledged that in Jones, supra, 17 Cal.4th 329, 338, 70 Cal.Rptr.2d 844, 949 P.2d 941, it had stated that section 52.1 was adopted “ ‘to stem a tide of hate crimes’ ” (Venegas II, supra, 32 Cal.4th at p. 843, 11 Cal.Rptr.3d 692, 87 P.3d 1), but asserted that “our statement did not suggest that section 52.1 was limited to such crimes, or required plaintiffs to demonstrate that County or its officers had a discriminatory purpose in harassing them, that is, that they committed an actual hate crime.” (Venegas II, supra, at p. 843, 11 Cal.Rptr.3d 692, 87 P.3d 1.) The court disagreed, however, with the County’s assertion that such an interpretation would mean that section 52.1 would apply in all tort actions. “Civil Code section 52.1 does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right…. [W]e need not decide here whether section 52.1 affords protections to every tort claimant, for plaintiffs in this case have alleged unconstitutional search and seizure violations extending far beyond ordinary tort claims. All we decide here is that, in pursuing relief for those constitutional violations under section 52.1, plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion. The Court of Appeal was correct in holding that plaintiffs adequately stated a cause of action under section 52.1.” (Venegas II, supra, at p. 843, 11 Cal.Rptr.3d 692, 87 P.3d 1.)
Unlike the Supreme Court in Venegas II, we are indeed required to decide here whether section 52.1 affords protection to every claimant who alleges interference with his or her right to be free of an unreasonable seizure, i.e., over-detention beyond the time lawfully permitted, where the over-detention occurs because of mere negligence rather than a volitional act intended to interfere with the exercise or enjoyment of the constitutional right. In other words, if the circumstances of the over-detention are coextensive with those that would support a tort claim for negligent false imprisonment, and do not involve any additional showing of ill will or blameworthy conduct, is section 52.1 applicable? Shoyoye contends that the intimidation and coercion inherent in being incarcerated is sufficient to show that defendant interfered by threats, intimidation, or coercion with his right to be free from an unreasonable seizure. Naturally the County disagrees. We are thus called upon to decide this issue of first impression, which we conceptualize as involving two related questions: What type of interference is contemplated by the statute—intentional and callous interference only or also incidental interference brought about by negligent conduct? As applicable here, where coercion is inherent in the constitutional violation alleged, as it is in an unreasonably prolonged detention, is the statutory requirement satisfied or does the statute require a showing of coercion independent from the coercion inherent in the wrongful detention itself?
A. Intentional Interference With a Constitutional Right
“ ‘The objective of statutory interpretation, of course, is to ascertain and effectuate legislative intent. If the words are clear, a court may not alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.] At the same time, however, a statute is not to be read in isolation; it must be construed with related statutes and considered in the context of the statutory framework as a whole. [Citation.] A court must determine whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other related provisions.’ (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 986 [44 Cal.Rptr.2d 93].)” (Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 505, 108 Cal.Rptr.2d 10.)
[5][6] The statutory framework of section 52.1 indicates that the Legislature meant the statute to address interference with constitutional rights involving more egregious conduct than mere negligence. Subdivision (e) contains a provision that directs the plaintiff to inform his or her local law enforcement agency of orders made pursuant to the section, such as for injunctive relief, in “locations where the court determines that acts of violence against the plaintiff are likely to occur.” (Italics added.) Similarly, subdivision (j) states that: “Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.” (Italics added.) While we are not prepared to and need not decide that every plaintiff must allege violence or threats of violence in order to maintain an action under section 52.1 (see e.g., Cabesuela v. Browning–Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 80 Cal.Rptr.2d 60), we conclude that the multiple references to violence or threats of violence in the statute serve to establish the unmistakable tenor of the conduct that section 52.1 is meant to address. The apparent purpose of the statute is not to provide relief for an over-detention brought about by human error rather than intentional conduct.
[7] We further note that when section 52.1 was amended in 1990 to allow plaintiffs to recover monetary damages in addition to the remedy of injunctive relief the statute originally provided (Stats.1990, ch. 392 (A.B.2683), § 1), the Legislature also considered, but rejected, a proposal to delete the language requiring interference “by threats, intimidation, or coercion.” A bill analysis prepared by the Department of Justice commented that “As a general proposition, statutory or common law remedies are already available to redress interference with rights protected by state or federal constitutions or laws (e.g., tort). Civil Code § 52.1 focuses specifically on the additional element present especially in hate violence, viz., putting persons in fear of their safety. It is the element of threat, intimidation, or coercion that is being emphasized in Civil Code § 52.1. [¶] The proposed deletion would, in effect, make the civil rights remedy as an alternative cause of action in virtually every tort action: Any tort (and, perhaps, some contractual interferences) could be characterized as interference with ‘rights secured by the Constitution or laws of the United States or of rights secured by the Constitution of laws of this state.’ ” (March 1, 1990 Department of Justice Bill Analysis at p. 2. See also Assembly Committee on Judiciary hearing March 7, 1990 at pp. 2–3: “Does not the inclusion of the terms [threats, intimidation, or coercion] clearly define the types of interferences that the Act originally intended to curb (i.e. hate violence)?”) The legislative history thus supports our conclusion that the statute was intended to address only egregious interferences with constitutional rights, not just any tort. The act of interference with a constitutional right must itself be deliberate or spiteful.
B. Coercion Inherent in a Detention Is Insufficient
[8] Thus, we conclude that where coercion is inherent in the constitutional violation alleged, i.e., an over-detention in County jail, the statutory requirement of “threats, intimidation, or coercion” is not met. The statute requires a showing of coercion independent from the coercion inherent in the wrongful detention itself.
The issue was squarely presented in a federal district court case, Gant v. County of Los Angeles (C.D.Cal.2011) 765 F.Supp.2d 1238 (Gant ). There, several plaintiffs alleged federal and state constitutional violations arising from their arrests and subsequent detentions on warrants intended for different people. Having determined that there was no California case law addressing the issue, the Gant court looked to a Massachusetts decision, Longval v. Commissioner of Correction (1989) 404 Mass. 325, 535 N.E.2d 588 (Longval ), appropriately so because section 52.1 was modeled closely on the Massachusetts Civil Rights Act of 1979. (Gant, supra, at p. 1253. See Jones, supra, 17 Cal.4th at p. 335, 70 Cal.Rptr.2d 844, 949 P.2d 941.) The court in Gant observed: “Massachusetts case law suggests that the statute’s coercion element is not met merely because the constitutional violation itself is inherently coercive. In [ Longval ], the Massachusetts Supreme [Judicial] Court considered a prisoner’s claim under the corresponding state civil rights law that his rights were violated when he was unlawfully transferred to an administrative segregation unit in another prison without a hearing. [ (Longval, supra, at p. 590.) ] There, the court held that ‘[a] direct violation of a person’s rights does not by itself involve threats, intimidation, or coercion and thus does not implicate the Act.’ [Citation.] Thus, it held, ‘we see no coercion, within the meaning of the … Act, simply from the use of force by prison officials, authorized to use force, in order to compel a prisoner to do something he would not willingly do, even if it turns out that the official had no lawful right to compel the prisoner to take that action.’ [Citation.] Because the use of force was intrinsic to the alleged violation itself, it did not also satisfy the additional ‘force’ or ‘coercion’ element of the statute.” (Gant, supra, 765 F.Supp.2d at p. 1253; citing Longval, supra, at p. 593.) The Longval court observed: “Shackling and handcuffing Longval and taking him to Concord was not by itself coercive under the Civil Rights Act, as Longval claims. If the officials had some further purpose in treating Longval as they did, threats, intimidation, or coercion might be involved. Conduct, even unlawful conduct, however, lacks these qualities when all it does is take someone’s rights away directly. [Citation.]” (Longval, supra, at p. 593; italics added.)
The Gant court adopted this analysis and rejected the section 52.1 claims of the wrongfully arrested plaintiffs, holding that: “[A] wrongful arrest and detention, without more, cannot constitute ‘force, intimidation, or coercion’ for purposes of section 52.1.” (Gant, supra, 765 F.Supp.2d at pp. 1253–1254.) “[S]ection 52.1 requires a showing of coercion independent from the coercion inherent in a wrongful detention itself.” (Id. at p. 1258.) We agree.
We note the contrary holding in Cole v. Doe (N.D.Cal.2005) 387 F.Supp.2d 1084 in which the federal district court held that the “[u]se of law enforcement authority to effectuate a stop, detention (including use of handcuffs), and search can constitute interference by ‘threat[ ], intimidation, or coercion’ if the officer lacks probable cause to initiate the stop, maintain the detention, and continue a search.” (Id. at p. 1103.) However, we do not find the case persuasive because the Cole court’s analysis focused on whether the use or attempted use of excessive physical force or violence must be alleged (concluding that it did not). (Id. at pp. 1103–1104.) Our focus is not so limited.
C. Shoyoye Did Not Prove Coercion Independent from that Inherent in a Wrongful Detention
[9] The evidence presented at trial showed only that County employees were negligent in assigning to Shoyoye a parole hold in the computer system, and in failing to detect the error during the subsequent quality control procedure. None of the County employees here wrongfully detained Shoyoye with actual or presumed knowledge that he should have been released. Early on, someone followed through on his inquiry and ascertained that he had a DCL hold. The employees could reasonably rely on the information in the computer system, based on the reasonable assumption that the quality control check would catch errors. As a result, the County employees thought he should be there. Any intimidation or coercion that occurred was simply that which is reasonable and incident to maintaining a jail. The coercion was not carried out in order to effect a knowing interference with Shoyoye’s constitutional rights. This is in stark contrast to Venegas II, for example, in which the evidence presented could support a finding that the probable cause that initially existed to justify stopping the plaintiffs eroded at some point, such that the officers’ conduct became intentionally coercive and wrongful, i.e., a knowing and blameworthy interference with the plaintiffs’ constitutional rights. (Venegas II, supra, 32 Cal.4th at p. 843, 11 Cal.Rptr.3d 692, 87 P.3d 1 [“plaintiffs in this case have alleged unconstitutional search and seizure violations extending far beyond ordinary tort claims”].)
Here, County employees certainly were rude to him at times, but they did not threaten or intimidate Shoyoye for voicing his opinion that he should be released. They coerced him to remain incarcerated, but they did not for example coerce him to stop inquiring about his release, threaten him for doing so, or punish him in any way. No one ignored him deliberately, knowing that he should in fact be released, let alone purposefully threaten or intimidate him. At worst they were rude and indifferent to his inquiries. But jail officials do not have a duty to be polite. There is no evidence that Shoyoye was treated differently than other inmates who were lawfully incarcerated, or that any conduct directed at him was for the purpose of interfering with his constitutional rights. He felt physically threatened by other prisoners who thought he might be an informant, not by County officials. No doubt the experience was traumatic and frightening, but there was no evidence of any coercion independent of that inherent in a wrongful detention itself. We therefore conclude, as a matter of law based on the undisputed facts, that Shoyoye did not establish a violation of section 52.1. We reverse that portion of the judgment finding against the County on the cause of action pursuant to section 52.1. Accordingly, we also reverse the award of attorney fees in favor of Shoyoye that were awarded pursuant to subdivision (h) of the statute.FN5
FN5. This conclusion of course renders moot Shoyoye’s cross-appeal regarding the amount of the attorney fee award.
III. Reversal of the False Imprisonment Verdict and Associated Damage Award Is Not Required
[10] The County asserts that if the judgment in favor of Shoyoye under section 52.1 is reversed, we must reverse the entire judgment because the jury did not apportion the damage award between the section 52.1 cause of action and the false imprisonment claim. We conclude under the factual circumstances present here, where the damages attributable to each cause of action are identical, that reversal of the false imprisonment verdict and associated damage award is not required.
[11] “The elements of a tortious claim of false imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” (Easton v. Sutter Coast Hospital (2000) 80 Cal.App.4th 485, 496, 95 Cal.Rptr.2d 316.) The evidence presented at trial was clearly sufficient to establish those elements.
Shoyoye did not present evidence at trial of any threats, intimidation, or coercion apart from that which is incident to detention in County jail. Indeed, he vehemently argued that the intimidation and coercion inherent in his wrongful detention were alone sufficient to support his claim. Plaintiff’s counsel did not suggest to the jury that they should award damages for each cause of action separately, or award additional damages because of the section 52.1 claim. Under these circumstances, we need not reverse the entire judgment because the measure of damages for false imprisonment, as this case was presented to the jury, was identical to the measure of damages for violation of section 52.1. We do not decide whether an additional award would be warranted to compensate a plaintiff for the more egregious conduct which we have concluded is necessary to establish a violation of section 52.1. But we do find that the verdict here included no such augmentation.
The judgment in favor of Shoyoye as to the section 52.1 cause of action is reversed, as is the award of attorney fees in favor of Shoyoye, which was granted under the authority of that section. The judgment in favor of Shoyoye is affirmed as to the cause of action for false imprisonment, and the associated monetary damage award is affirmed. The parties are to bear their own costs on appeal.

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