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LOMACK v. CITY OF NEWARK

United States District Court, D. New Jersey


August 24, 2005.

CHARLES LOMACK; HAROLD J. BANE, JR.; RAMON DOMINGUEZ; JAMES P. WILLIS; KEVIN L. JOHNSON; PAUL T. MAZZA; KENNETH REEDS; GARY HOLMAN; LUTHER ROBERSON, III; GERRELL ELLIOTT, CLARENCE R. BRUTON; JAMES GILES; DEAN GATTI; PETER J. COONEY; JOHN P. MELANI; GREGORY HIGHSMITH; JUAN H. RAMOS; DAYON COBBS; DEBLIN RODRIGUEZ; RAMON RIVERA; CHARLES H. WEST; SCOTT WOLF; WILFREDO RIVERA; KARREEM JACKSON; JOHN BROWN; WYNDELL COOPER; SHANNON McTIGHE; ASHTON ROBINSON; MARK PISERCHIO; CHRIS DEMURO; NEWARK FIREFIGHTERS UNION; ERIC BARNES; EDWARD GRIFFITH; LEWIS MANNING and FRANK ZIDZIUNAS, Plaintiffs,
v.
CITY OF NEWARK, SHARPE JAMES, EDWARD DUNHAM, LOWELL F. JONES and NORMAN J. ESPAROLINI, Defendants.

The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District

OPINION

HISTORY

This action has historical origins at least fifty years old. In the wake of World War II as more and more African-Americans migrated to northern cities, such as Newark, N.J., racial tensions between them and Newark's then predominantly white population escalated. Those tensions reached a flashpoint in the riots of July 1967, from which many neighborhoods in Newark have not yet recovered. The conflicts between ethnic groups generated many inequities and illegal policies which, eventually, the courts were required to address. Regrettably, racial discrimination in public employment manifested itself in many New Jersey cities, for example in their fire departments. This condition led the United States to file suit against the State of New Jersey and several cities to eliminate such practices in fire departments. United States v. State of New Jersey, et al, Civ. No. 77-2054, 79-184. That action was concluded by a Consent Decree (Exh. D-10) dated May 30, 1980, which provided, inter alia:

1. The defendants are compelled by law and by entering into this Order acknowledge their obligation to, and agree they shall, refrain from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any black or Hispanic employee of, or any black or Hispanic applicant or potential applicant for employment with their respective fire departments because of such individuals' race, color, or national origin. Specifically the defendants shall not discriminate against any such individual in hiring, assignment, training, discipline, promotion or discharge because of race, color, or national origin. Further, defendants shall not retaliate against or in any respect adversely affect any person because that person has opposed discriminatory policies or practices or because of that person's participation in or cooperation with the initiation, investigation or litigation of any charge of discrimination based on race or national origin, or the administration of this Order. Remedial actions and practices required by the terms or permitted to effectuate and carry out the purpose of this Order shall not be deemed discriminatory within the meaning of 42 U.S.C. 2000e-2(a).
(Emphasis added). In paragraph 3(d) of the Consent Decree, Newark acknowledged a goal "to fill at least sixty (60) percent of all vacancies [for entry level firefighters] with qualified minority applicants." To be sure the primary focus of the Consent Decree is on the testing of applicants and the hiring of minorities, but its plain language also encompasses discriminatory assignments of firefighters, the gravamen of the case at bar.

  Events Preceding Institution of this Suit

  In 1995, the City of Newark commissioned two reports to examine the performance of the Newark Fire Department in the 15 years of operation under the Consent Decree. The Reports were authored by Lezli Baskerville, Esq., an attorney practicing in Washington, D.C. ("D-13" or "Baskerville Report") and Rosenfarb & Co. CPAs of Roseland, N.J. and New York City ("D-14" or "Rosenfarb Report"). Each of these reports was submitted to the Newark City Council in December 1995.

  Ms. Baskerville's conclusions included the following:

There are numerous firehouses in the City that are segregated by race. The belief is that the segregation is deliberate. Examples were cited of the following all African American companies with African American officers in command: Engine Company Nos. 7, 12, 15, 17, 19 & 29; Truck Company Nos. 7 and 10. Additionally, the following all African American companies with white officers in command were cited as examples of the pervasive discrimination: Engine Company Nos. 8, 13, 27, 29; and Truck Company Nos. 1, 4, and 6. Examples were also cited of firehouses with at least one all white tour: Engine Company Nos. 6, 9, 14, 16, 17 and 19; Truck Company Nos. 1, 5, 8, 10, 11. (D-13 at p. 17).
  The Rosenfarb Report focused on segregated tours in firehouses, providing charts reflecting the ethnic makeup (white, black, Hispanic) of each of the 108 tours identified. The Report included graphs as Exhibits D-1 through D-20 depicting the ethnicity of each member of each tour. (D-14 at Exhs. D-1 through D-20). Summarizing those graphed findings, the Rosenfarb Report stated:

 

Exhibits D-1 through D-20 set forth the tour compositions of each firehouse on August 2, 1995. The information the Department provided to us described 108 tours. Eighty-one of the tours had a majority of white personnel, with 30 being comprised entirely of white personnel. Fifteen of the firehouse tours were predominantly black. Only one tour had a majority of hispanics. The remaining eleven tours did not contain a majority of any one group. The tours consisted of both firefighters and captains.
Actually, that summary is somewhat understated in that of the tours described as "predominantly black", eight (or more than one-half) were comprised of entirely black personnel. (Id.)*fn1

  One cannot speculate as to why the City of Newark did not respond promptly to this issue of segregated firehouses. Perhaps its Counsel were uncertain as to how to proceed in the wake of the United States Supreme Court's decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Perhaps other features of these reports such as those criticizing the lack of outreach to encourage applicants, alleged circumvention of residency requirements, and failure to attain a sufficient total number of minority firefighters, consumed more time and attention in the years following 1995. Nevertheless, Mayor Sharpe James, at his re-inauguration speech on July 1, 2002, made it clear that segregated firehouses should disappear from the landscape of Newark. In his words:

Our Fire Department will face a mandate to integrate our fire houses to improve morale. It is inexcusable that [in] the year 2002 we still have segregated fire houses in the City of Newark, and to give firefighting and community services a higher priority than politics. To lead this charge, to lead this charge a true professional firefighter Former Fire Chief Edward Dunham will serve as Director of the Newark Fire Department. Ed is a career fire officer who joined the Department in 1970 and worked his way through the ranks to Captain before being named Fire Chief in 1998. Since his retirement in 2000 he has been the Department's Affirmative Action Specialist both during active service and in his current position during retirement. He has been the prime mover of efforts to recruit and train minority personnel for the Department. We plan to make our Fire Department the best in America and to honor a court order to make our Fire Department the mirror of the City of Newark, Mr. Ed Dunham.
(Exh. P-1).

  Mr. Dunham determined that a policy of transfers between firehouses was a sound way to accomplish their desegregation. On November 27, 2002 he wrote to Fire Chief Lowell Jones as follows:

"You are directed to formulate a mass departmental transfer list throughout Fire Suppression Operations.
This transfer list shall include the following:
1. Reflect the diversity of the department; and
2. Assignment of Roving Probationary Firefighters.
You are to have this list completed and forwarded to this office on or before December 31, 2002."
(Exh. P-3).

  Chief Jones' Department Transfer List, Exh. P-4, was crafted as that exhibit explains;*fn2 however, it did not attain the goal of integration which Dunham was pursuing. Accordingly, Fire Director Dunham asked Battalion Chief Raymond L. Wallace to generate a transfer list which would attain that goal. Wallace did so, presenting such a list with an explanation of its origins on January 13, 2003. That list (Exh. P-5) is also attached to this Opinion. Wallace's methodology bears repeating here, particularly in light of the strict scrutiny which this affirmative action program must survive. After reviewing the transfer list submitted by Fire Chief Jones as requested by you, I note the directive as to have diversity throughout the Newark Fire Department has not been achieved. if Chief Jones transfer list were to be used, there would be 14 companies all Caucasion and 10 companies African American. (see Jones list) This list does not meet the directive and is unsatisfactory.

 

I propose a solution that would meet the mandate of diversity for all fire crews within the Department. (see 100% diversity) This would require transfers of department members to meet the objective. The transfers would be consistent across the Department, as the firefighter with the least seniority would be transferred. Some of these transfers would be made within the same firehouse, changing tours. Others would be transferred within the Battalion when possible. Be assured that every effort was made to minimize the impact on the affected firefighter.
(Emphasis in original.)

  On January 15, 2003, in Executive Order No. 426 (Exh. P-6)*fn3 Director Dunham announced the list of transfers (consistent with Wallace's memorandum) "effective at 0800 hours on Friday, January 31, 2003." This was a unique event in the Newark Fire Department since transfers in the past had been predominantly voluntary with a significant role being played by the plaintiff unions in the granting or denial of transfer requests. As the year 2004 began, Director Dunham and Mayor James were able to announce that all of Newark's fire companies had been integrated. Several of the plaintiffs instituted EEOC claims of race discrimination based upon this implementation of integration through the transfers policy, receiving right to sue letters on or about November 2, 2004. (Second Amended Complaint at 45-46). The present lawsuit, filed on December 14, 2004, soon followed.

  The Complaint*fn4

  Asserting that 24 firefighters were involuntarily transferred out of their present companies, and five were denied requests to transfer, due to the new diversity policy, and seeking to avoid similar transfers in late 2004 and early 2005, plaintiffs have brought the present lawsuit alleging violation of the right of equal protection under the Constitution of the United States, violation of civil rights through state action per 28 U.S.C. § 1983, and race discrimination within the purview of Title VII (42 U.S.C. § 2000e et seq.) and the New Jersey Civil Rights Act (N.J.S.A. 10:6-1 et seq.)

  PROCEDURAL HISTORY IN THIS COURT

  On December 15, 2005 this Court granted a Temporary Restraining Order ("TRO") against any further involuntary transfers within the Newark Fire Department ("NFD") and set the matter down for a hearing for a preliminary injunction on January 6, 2005. The TRO was filed on December 23, 2004. A preliminary injunction was denied, without prejudice, as embodied in the Court's Order of January 7, 2005. An Amended and then a Second Amended Complaint were filed, and the matter proceeded to a bench trial during which the Court took testimony on March 15, 17, 18 and 21 and on May 2, 2005. Also, on April 21, 2005, plaintiffs' additional application for a preliminary injunction was denied. On May 25, 2005, each side submitted proposed findings of fact and conclusions of law, and on June 10, 2005 plaintiffs submitted a response to defendants' submission.

  The Law

  The Court is tempted to view this matter in its simplest terms: reasonable action by a municipality, operating under a consent decree, to desegregate its fire companies, much as it would its schools, because "separate but equal" is not a viable rationale to justify segregation in either setting. It is equally tempting to conclude that because assignments and reassignments to tours are the City's management prerogative (in which the plaintiff Unions have no role and which the affected firefighters and officers may not grieve under their CBAs), the present transfer plan to desegregate Newark's firehouses is a legitimate, unassailable exercise of that prerogative. See Newark Firefighters Union, Inc. v. City of Newark, ___ N.J. Super. ___ (App.Div. June 23, 2005), which this Court finds persuasive and endorses.

  However, the United States Supreme Court has, in the last 10 years, addressed in depth the manner in which a court should scrutinize affirmative action programs to promote diversity in a setting such as that presented here. The City's transfer program should also be measured against those standards.

  In Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the Court, resolving conflicting approaches in its own prior decisions, determined that all racial classifications employed by a governmental actor must be analyzed by a reviewing court under strict scrutiny, to ensure that rights of equal protection under the law (a fourteenth amendment guarantee) have not been infringed. That strict scrutiny requires a determination that the action taken serves a compelling governmental interest and is narrowly tailored to further that interest. Although Adarand's factual setting is different from that of the case at bar, the recent decisions involving admissions policies at the University of Michigan are much closer, and the Court will address them at this time.

  In Gratz v. Bollinger, 539 U.S. 244 (2003), the Court acknowledged that diversity in the student body of an educational institution can constitute a compelling state interest, but concluded that the automatic allowance of a 20-point bonus (one-fifth of the total points needed to guarantee admission) to each "underrepresented minority" candidate solely because of ethnicity was not narrowly tailored to ensure diversity. Thus, this policy for undergraduate admissions at the University of Michigan was struck down.

  In Grutter v. Bollinger, 539 U.S. 306 (2003), decided on the same day as Gratz, the Court upheld against a similar attack the admissions policy of the University of Michigan Law School. The Court, speaking through Justice O'Connor (also the author of Adarand) stated, "today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions." (Id. at 325). Turning to the record before it, the Supreme Court stated the following in concluding that the Law School had a compelling interest in the generation of a diverse student body.

 

Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission, and that "good faith" on the part of a university is "presumed" absent "a showing to the contrary." 438 U.S., at 318-319, 57 L. Ed. 2d 750, 98 S. Ct. 2733.
As part of its goal of "assembling a class that is both exceptionally academically qualified and broadly diverse," the Law School seeks to "enroll a `critical mass' of minority students." Brief for Respondents Bollinger, et al. 13. The Law School's interest is not simply "to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin." Bakke, 438 U.S. at 307, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (opinion of Powell, J.). That would amount to outright racial balancing, which is patently unconstitutional. Ibid.; Freeman v. Pitts, 503 U.S. 467, 494, 118 L. Ed. 2d 108, 112 S. Ct. 1430 (1992) ("Racial balance is not to be achieved for its own sake"); Richmond v. J.A. Croson Co., 488 U.S., at 507, 102 L. Ed. 2d 854, 109 S. Ct. 706. Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.
These benefits are substantial. As the District Court emphasized, the Law School's admissions policy promotes "cross-racial understanding," helps to break down racial stereotypes, and "enables [students] to better understand persons of different races." App. to Pet. for Cert. 246a. These benefits are "important and laudable," because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds." Id., at 246a, 244a.
(Id. at 333).

  The Court then proceeded to determine whether the Law School's admission program (very different than that for undergraduate admissions) was narrowly tailored to achieve a diverse student body. In the Court's words:

We acknowledge that "there are serious problems of justice connected with the idea of preference itself." Bakke, 438 U.S., at 298, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (opinion of Powell, J.). Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally "remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit." Id., at 308, 57 L. Ed. 2d 750, 98 S. Ct. at 2733. To be narrowly tailored, a race-conscious admissions program must not "unduly burden individuals who are not members of the favored racial and ethnic groups." Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 630, 111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990) (O'Connor, J., dissenting).
(Id. at 341). The Court then concluded that the Law School's admissions program was narrowly tailored, and upheld it.

  Newark's Policy

  Let us now apply strict scrutiny to Newark's policy to desegregate its firehouses, determining first whether this City had a compelling interest in doing so and, if so, whether the action taken was narrowly tailored to achieve that goal.

  Compelling Interest

  Prior to the implementation of the present diversity policy, de facto segregation existed in a significant number of tours in Newark's firehouses. Thus, the "assignment" of personnel through the random system previously in place had the "effect of unlawfully discriminating against [a] black or Hispanic employee" (to wit, a firefighter of that ethnicity) assigned to an all-black or all-Hispanic tour. (Consent Decree at ¶ 1). Since separate but equal circumstances such as these have been declared per se discriminatory for more than 50 years, Newark had a compelling interest to institute an assignment policy that would desegregate its tours. With the adoption of the policy of involuntary transfers to eliminate segregated tours of duty in the Fire Department, the City of Newark initiated "remedial actions and practices . . . permitted to effectuate and carry out the purpose of this Order. . . ." (Id.) Indeed, any such remedial actions under the Consent Decree were specifically declared not to be discriminatory within the purview of Title VII. (Id) In brief, Newark instituted the transfer policy to implement the Consent Decree by desegregating its firehouses, a compelling interest if ever there was one, and it succeeded.

  Plaintiffs argue that a fire department is not a law school and that the benefits of diversity to such an educational environment do not apply to a firehouse whose mission is to fight fires and deal with other community emergencies, not to educate tomorrow's leaders. From that premise, plaintiffs further argue that Newark's transfer policy is "outright racial balancing . . . for its own sake", action condemned by the Supreme Court. Grutter v. Bollinger, 539 U.S. 306, 333 (2003). While these arguments deserve consideration, they do not prevail in the case at bar.

  There is credible evidence in the record that exposure to other firefighters of different backgrounds, vocabularies and cultures better prepares a firefighter to work effectively with his colleagues and to perform better on tests for promotional opportunities. Mentoring from senior firefighters on a tour (usually white) helps junior (often minority) firefighters better learn and perform their tasks. Much of a firefighter's time is spent at the firehouse in a setting of formal and informal training which is enhanced by a diverse, multi-generational environment. Racial stereotypes can be broken down in this setting as well as in a classroom. The Court finds the testimony of Captain Fatcen Ziyad particularly persuasive regarding the educational and sociological benefits of service in an integrated fire company. As stated in the defendants' post-trial submission, which the Court finds supported in the record and, therefore, adopts: "Captain Ziyad and Former Director Ed Dunham testified how integration in fire companies leads to greater camaraderie between coworkers, acceptance and consideration for people of varying backgrounds, sharing of information and study support. It also promotes tolerance and mutual respect among colleagues. What the NFU and the NFOU fail to even acknowledge in their quest to maintain firefighter based assignments choices, which led to the creation of single-race fire companies, is that firefighters are often welded together with a deep friendship and respect born in training together, in being housed together, in combating fires together, and subsequently matured by the realization that such diverse racial, gender and cultural association is not the impossibility within the fire department that many have been led to believe." (Defendants' Findings of Fact and Conclusions of Law at 36).

  Accordingly, while education is not the primary function of a fire company, formal and informal training, on the job and during a tour at the firehouse, is an important aspect of a firefighter's occupation. Development of mutual respect and understanding between members of different races in the Newark Fire Department, which can only improve their performance in their often dangerous work, is necessarily enhanced by serving side-by-side with colleagues in a multi-racial tour.

  When one "strictly scrutinizes" the Newark transfer policy and finds it to be designed to eliminate de facto segregation in its firehouses, in pursuit of the mandate of the Consent Decree to which it was a party, with attendant educational, sociological and job-performance enhancements as well, one is led to the inevitable conclusion that this policy was implemented to achieve a "compelling interest" of the City. Under no circumstances can it be said that the policy in question is merely "outright racial balancing . . . for its own wake." Grutter, 539 U.S. at 333.

  Narrow Tailoring

  The Court now turns its attention to the question of whether the policy implemented by the City of Newark was "narrowly tailored" to achieve the goal. Indeed it was.

  Initially, the Court notes that Union participation was certainly not required as any part of a narrowly tailored approach. The Unions' participation in prior transfer decisions as a claim of right had contributed significantly to the singlerace firehouses with which Newark was confronted in 2002. The letter from Captain John B. Sandeller of the Newark Fire Officers Union to Chief Jones, dated December 30, 2002, demonstrates that it would be business as usual as far as the Union was concerned. (Exh. P-19).

  The Newark Fire Department then proceeded in a measured, appropriate sequence to establish a policy to achieve its goal of desegregation. Chief Jones produced for Director Dunham a list (P-4) essentially based upon voluntary transfer requests (some granted and some denied) and the assignment of new arrivals in the Department. Chief Jones said that through this list he "tried to achieve an element of diversity . . ." (Id.) However, he was unsuccessful in achieving diversity throughout all tours. Battalion Chief Wallace next addressed this task, generating the transfer list with the explanation of its methodology appearing in P-5. Wallace's approach could serve as a textbook for narrow tailoring in this field:

(1.) The Court infers that Wallace picked up where Jones left off, that is, employing assignments to new firefighters, and honoring voluntary transfer requests where diversity goals could be served.
(2.) Both white and non-white firefighters would be involuntarily transferred.
(3.) "the firefighter with the least seniority would be transferred." (Id.)
(4.) "Some of these transfers would be made within the same firehouse, changing tours." (Id.)
(5.) "Others would be transferred within the Battalion when possible." (Id.)
(6.) ". . . every effort was made to minimize the impact on the affected firefighter." (Id.)
(7.) No firefighter, whatever his race, was fired, laid off or furloughed.
(8.) No firefighter suffered any reduction in rank, seniority or compensation.
(9.) No successful recruit was denied admission to the Fire Department.
(10.) Use of the transfer policy violated no employee's rights under any CBA because it was the exercise of a management prerogative.
  Under strict scrutiny, the Court determines that the City of Newark had a compelling interest to desegregate its fire companies and did so pursuant to a policy of assignments and transfers that was narrowly tailored to achieve that goal. Plaintiffs have, therefore, failed to sustain any of their claims in the Second Amended Complaint.

  Coda

  While the Court has undertaken the foregoing factual and legal analysis which the law requires, determining that under such principles as "strict scrutiny", "compelling interest" and "narrow tailoring" Newark's plan to integrate its fire companies survives plaintiffs' attack, it has also not lost sight of its primary mission in all cases: to ensure that justice is done. The racial tensions that have gripped the City of Newark for decades, even erupting into the riots of 1967, are all too well known in this region. The Consent Decree was a valiant effort to combat racial preferences in the Newark Fire Department but, as noted above, progress under that Decree was painfully slow. To suggest that the Decree and the racism which it sought to combat is satisfied merely by a gross headcount of minority firefighters and officers while segregated firehouses persist is to endorse, in essence, the separate but equal philosophy so emphatically rejected by our Supreme Court more than 50 years ago in Brown v. Board of Education, 347 U.S. 483 (1954).

  The City of Newark, urged by its mayor and working through the senior members of the Fire Department, undertook the laudable goal of integrating all the City's fire companies through a policy of augmenting transfer requests and assignments of new personnel with a minimum of necessary involuntary transfers. This was not an easy task, particularly considering that three significant ethnic groups (Caucasian, African-American and Hispanic) are involved in the assignment process. But the task has been accomplished, and it was right and just to do so.

  Let us contrast the actions, the motives and the courage of the City of Newark with the conduct of the plaintiff Unions in this case: The Newark Firefighters Union and the Newark Fire Officers Union. Those unions and their leadership could have endorsed the city's plan and surely played a role in its implementation. The benefits to all Union members from integrated firehouses have been adequately argued and established on this record and, indeed, were obvious. Equally obvious is the potential for integrated fire companies, particularly when their members arrive at a neighborhood fire, to demonstrate to the citizens of the City of Newark that cooperation by persons of different races, striving side-by-side to achieve a common goal, works. But the Unions would have none of this. Blinded by a perceived incursion into their rights as their members' collective bargaining representatives, the Unions would sacrifice the laudable goal of a truly integrated fire department at the altar of a jurisdictional dispute over their "rights" to approve permanent transfers as bargainable terms and conditions of employment. On this point the Unions have recently been proven wrong by the Appellate Division in Newark Firefighters Union, Inc. v. City of Newark, ___ N.J. Super. ___ (App.Div. June 23, 2005). Yet, as plaintiffs in the case at bar, the Unions have pursued this goal under the guise of the United States Constitution and various anti-discrimination statutes. However, the perpetuation of segregated firehouses, with voluntary transfers into comfortable environments, encouraged by Union input particularly on questions of seniority (the old status quo which the Unions fight here to preserve), is the very antithesis of the civil rights laws which the Unions invoke. As noted in the preceding portions of this Opinion, they have not succeeded.

  CONCLUSION

  For the reasons set forth above, the Court dismisses all claims set forth in the Second Amended Complaint and enters judgment for the defendants, with costs.

 EXHIBIT

20050824

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