198 F.2d 726
UNITED STATESv.HALL.
No. 230.
Docket 22315.
United States Court of Appeals Second Circuit.
Argued April 8, 1952.
Decided August 28, 1952.

Harry Sacher, New York City (David M. Freedman, New York City, on the brief), for appellant.
Roy M. Cohn, Asst. U. S. Atty., New York City (Myles J. Lane, U. S. Atty., and James B. Kilsheimer, III, and Albert A. Blinder, Asst. U. S. Attys., all of New York City, on the brief), for appellee.
Before CHASE, BIGGS, and CLARK, Circuit Judges.
CLARK, Circuit Judge.

1
Respondent-appellant was convicted in the court below of conspiring to teach and advocate the overthrow of the government by force and violence, 18 U.S.C.A. § 2385, and, pending appeal from his conviction, was ordered released on bail by this court on November 3, 1949. On June 4, 1951, the Supreme Court affirmed his conviction, Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; and a proposed order on mandate requiring his appearance for surrender to the United States Marshal on July 2 was served upon counsel on June 28. Respondent did not appear on July 2, and attempts thereafter to execute a bench warrant at his stated address failed. He was apprehended on October 10, 1951, in Laredo, Texas.

2
The present proceeding was then commenced against him by affidavit and order to show cause served November 1, 1951. The charges specified criminal contempt of court in his being without the jurisdictions permitted in orders of Judge Bondy, dated November 10, 1949, and Judge Ryan, dated April 2, 1951, and in failing to surrender on July 2, 1951, as ordered by Judge Ryan on that date. Respondent was arraigned and pleaded not guilty, and the issues were tried without jury pursuant to Fed.Rules Crim.Proc., rule 42, 18 U.S.C.A. The district court dismissed the second count, but held respondent guilty on the first and third counts and sentenced him to three years' imprisonment on each count, the terms to run concurrently. D.C.S.D. N.Y., 101 F.Supp. 666.

3
The power of the district courts and the courts of appeals to punish for contempt is stated in 18 U.S.C.A. § 401. Specifically such power may be exercised, at the court's discretion, to punish "such contempt of its authority" as "Disobedience or resistance to its lawful writ, process, order, rule, decree, or command." 18 U.S.C.A. § 401(3). See also 18 U.S.C.A. §§ 402, 3691. Respondent seeks, however, by an able and industrious appeal to historical authority, to interpolate by tradition an exception for disobedience to orders to reappear for sentence directed to one convicted for a crime and enlarged on bail pending appeal.

4
We may agree that the common law did not consider an absconding defendant in contempt of court. It appears that such penalty as was imposed stemmed from the doctrine of outlawry which, on defendant's failure to appear at the fifth proclamation — quinto exactus — in successive county courts, 4 Bl.Comm. 283, effected a forfeiture of all goods and chattels. The process was equally available in both civil and criminal proceedings. 4 Bl.Comm. 319. Apparently outlawry was imported into our criminal law with some early vigor,1 but during the nineteenth century was either abolished or fell into disuse.2 It was unknown on the civil side of the court,3 and of course today has only an historical interest.

5
Whatever, then, may have been the common-law punishment for bail jumping, respondent here stands convicted of willful disobedience of certain specific orders made by the district court. We need not now enter into a discussion of the source of the federal contempt power;4 it is sufficient that the statute defines the acts toward which it may be directed.5 And since the offense charged falls clearly within the prescribed classes the only question that can arise is whether or not an exception is to be carved out, by an appeal to historical practices, for orders relating to personal surrender for sentence following enlargement on bail. We think not; the written provision itself contains no such exception and we know of no case qualifying its general description of offenses. See Fletcher v. United States, 4 Cir., 174 F.2d 373, 376, certiorari denied 338 U.S. 851, 70 S.Ct. 82, 94 L.Ed. 521. Not long ago we refused to hold that the possibility of accusation and prosecution under a statute defining a crime offered or suggested "any immunity for violating the direct mandate of a court," for "two different powers are involved, though the acts and events may be the same or interwoven." United States v. Field, 2 Cir., 193 F.2d 92, 95, 96, certiorari denied 342 U.S. 894, 72 S.Ct. 202. To similar effect are 18 U.S.C.A. §§ 402 and 3691. We think it would be equally hampering to the authority and dignity of a federal court, thus supported by congressional authority, to read into the broad statutory grant an unexpressed limitation of the form here suggested.

6
We turn then to the specific counts. The first alleges a violation of Judge Bondy's order of November 10, 1949. This court, on November 2, 1949, had ordered the respondent's release from custody pending appeal upon the posting of a bond in the amount of $20,000. The bond was filed the next day and, in addition to the usual provisions for appearance and surrender for execution of sentence when required, was specifically conditioned that Hall "shall not depart the jurisdiction of the District Court of the United States for the Southern District of New York without leave." Shortly thereafter respondent applied to Judge Bondy for permission to depart the jurisdiction in order to "take care of his affairs" at his home in the Northern District of Ohio, which was granted in an order quoted in pertinent parts in the footnote.6 As will be noted, this order recites the just-quoted condition of the bond and then, after granting the requested permission, subject to specified conditions (including return when ordered), provides that for any violation of the conditions the respondent's bond shall be forfeited.

7
The court below read the order as incorporating the promises of the bond, including those to surrender for execution and not to depart the jurisdictions. We think this error, for we find no plain violation, considering the purposes for which the former was drawn, Terminal Railroad Association of St. Louis v. United States, 266 U.S. 17, 29, 45 S.Ct. 5, 69 L.Ed. 150; and of course no contempt attaches merely to a failure to satisfy the guaranties of reappearance in the bond. A fair reading of the order discloses that it was directed to the enlargement of the respondent. The subordinate clauses which follow this directive are to be interpreted merely as setting out the purposes for which this enlargement was permitted — such as Hall's journey to Cleveland — and its subsequent conditions, including the required approval of his surety. Moreover, the order plainly specifies its own sanction, namely, forfeiture of the bond. In view of this, to construe it as a direct mandate to return on penalty of conviction for contempt requires some little adjustment of phraseology which, to support a conviction of contempt, we think improper.

8
But the order of Judge Ryan of July 2, 1951, is not so equivocal; it required "that the defendants personally surrender to the United States Marshal for the Southern District of New York," and the only question can be as to the sufficiency of the evidence supporting a finding that the defendant knowingly disobeyed. Under 18 U.S.C.A. § 401(3), there must be proof of the contemnor's knowledge of the order, Kelton v. United States, 3 Cir., 294 F. 491, certiorari denied 264 U.S. 590, 44 S.Ct. 403, 68 L.Ed. 864; and the burden on the Government is a high one. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797; United States v. Dachis, D.C.S.D.N.Y., 36 F.2d 601; United States v. Univis Lens Co., D.C.S.D.N.Y., 88 F.Supp. 809.

9
The evidence adduced showed the following: Upon the Supreme Court's affirmance of the conviction, a proposed order on mandate requiring surrender on July 2, 1951, at a specific time was served on Mr. Sacher, an attorney in the case, on June 28, 1951. The next day Mr. Sacher appeared before Judge Ryan in support of applications for orders to show cause why the sentences should not be reduced or, as to one of the defendants, suspended because of illness. Judge Ryan agreed to hear the applications on July 2, and Mr. Sacher stated: "You have my word that all of these defendants will be here at that time." By July 3, however, four had failed to appear and, upon Judge Ryan's inquiry as to where he last saw these four, Mr. Sacher stated that he had seen them on Friday (June 29) at 35 East 12th Street. The court inquired: "Did you tell them at that time that their presence was required in court yesterday morning?" Mr. Sacher replied: "Definitely. As a matter of fact I advised that because I think I saw them among other defendants after I had been here on Friday, your Honor, and had made these motions, and therefore advised that they all should be present, and I was assured that they would be."

10
There was further evidence, given by a person present, of a banquet in respondent's honor at Cleveland on June 24, 1951, where the remarks of respondent, as well as other speakers, showed full awareness that he was about to be imprisoned to serve his federal sentence. So early in the morning of June 30 he was observed to leave his New York apartment, carrying two suit cases and some suits on a hanger to an automobile, and to drive away. He then had light hair and a mustache, and was heavier in weight than at his trial. When he was apprehended three months later on the Mexican border his hair was dyed dark brown, his mustache had been removed and he weighed twenty pounds less. He did not take the stand.

11
Hence from the uncontroverted evidence it appeared that there was a specific order for his appearance, that this was directly communicated to him, and that he willfully and intentionally absconded two days before his ordered appearance. The only possible gap in the proof is the lack of complete and direct showing of his awareness of the purpose for which his court attendance was required. In vigorous and able argument, his counsel makes much of this and suggests in fact that counsel's own explanation to the court indicates that he was told to be present to hear the arguments on the motions. The statement quoted above — "and therefore advised that they all should be present" — is at best equivocal, but we need not look to this alone. Respondent, with a considerable legal sophistication born of long involvement, could hardly have arrived at the bizarre conclusion (under the circumstances) that he was wanted then only to hear lawyers' talk; and his actions in furtively absconding show rather decisively that he was under no illusions as to his situation.

12
On this record, therefore, we think the court was eminently justified in finding as a fact that respondent had complete notice of the order and willfully disobeyed it.7 The inference not only was well within the area permitted to a trier of facts, but was indeed one highly reasonable if not compelled. However heavy the evidential burden on the prosecution here, it can hardly be held more exacting than the "proof beyond a reasonable doubt" of an ordinary criminal case before a jury. We have been often pressed, but have consistently refused, to apply this formula to each link in the chain of alleged events in order that if as to any the proof is not thus overwhelming there must be a reversal of a verdict of guilt. Instead we have said that the process of drawing inferences is to be governed, as ordinarily, by human experience, that indeed no other rule of jury fact finding has a claim to reality, and that the strict requirement as to burden of proof constitutes an over-all admonition or warning, rather than a precise yardstick to be applied to each isolable segment of the proof. United States v. Valenti, 2 Cir., 134 F.2d 362, 364, certiorari denied Valenti v. United States, 319 U.S. 761, 63 S.Ct. 1317, 87 L.Ed. 1712; Gariepy v. United States, 6 Cir., 189 F.2d 459, 462; United States v. Sherman, 2 Cir., 171 F.2d 619, 621; United States v. Spagnuolo, 2 Cir., 168 F.2d 768 and cases cited 770, certiorari denied Spagnuolo v. United States, 335 U.S. 824, 69 S.Ct. 48, 93 L.Ed. 378. There can be little doubt but that a jury would have been permitted to make the rational inference made below. We think that a court must not be restricted beyond a jury or compelled to remain blind to so clearly intentional a flouting of its command as was here shown.

13
We therefore reverse the finding of contempt of Judge Bondy's order of November 10, 1949, and affirm the finding of contempt of Judge Ryan's order of July 2, 1951. Though the conviction necessarily is affirmed, since the sentences are to run concurrently, we have examined both issues for error against the event that respondent might apply to the district court's discretion for a reduction of sentence under F.R.Cr. P., rule 35. See United States v. Field, 2 Cir., 193 F.2d 92, 97, and cases cited therein, certiorari denied Hammett v. United States, 342 U.S. 894, 72 S.Ct. 202.

14
Reversed as to the first count; affirmed as to the second count.

Notes:

1
 Respublica v. Doan, Pa.Sup.Ct.1784, 1 Dall. 86, 1 U.S. 86, 1 L.Ed. 47, and see also Additional Appendix, Proceedings of the Supreme Executive Council of Pennsylvania, 1 L.Ed. 240, which speaks of outlawry as "those vindictive supplements to a severe code of jurisprudence"; Respublica v. Steele, Pa.Sup.Ct.1785, 2 Dall. 92, 2 U.S. 92, 1 L.Ed. 303; Commonwealth v. Hale, 2 Va.Cas. 241, 4 Va. 241; Commonwealth v. Hagerman, 2 Va.Cas. 244, 4 Va. 244; Commonwealth v. Anderson, 2 Va.Cas. 245, 4 Va. 245; Dale County v. Gunter, 46 Ala. 118, 138-140

2
 See N.Y.Rev.Stat., Pt. IV, c. II, Tit. 7, § 20, p. 745, abolishing outlawry in New York save on indictment or conviction for treason, N. Y. Code of Criminal Procedure, §§ 814-825

3
 Hall v. Lanning, 91 U.S. 160, 166, 23 L. Ed. 271; Magruder and Foster, Jurisdiction over Partnerships, 37 Harv.L.Rev. 793, 799

4
 Generally labeled "inherent," see inter alia United States v. Hudson, 7 Cranch 32, 11 U.S. 32, 3 L.Ed. 259; Michaelson v. U. S., ex rel. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162; United States v. Landes, 2 Cir., 97 F.2d 378; Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569. The recent denomination of 18 U.S.C.A. § 401 as "the statute which confers power on a federal court to punish for contempt," Sacher v. United States, 343 U.S. 1, 6, 72 S.Ct. 451, 453, is perhaps a new turn in interpretative theory

5
 "The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power. But the power has been limited and defined by the act of Congress of March 2d, 1831. The act, in terms, applies to all courts; whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the Circuit and District Courts there can be no question. These courts were created by act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be inflicted." Ex parte Robinson, 19 Wall. 505, 510, 86 U.S. 505, 22 L.Ed. 205. See also Morgan v. United States, 8 Cir., 95 F.2d 830; Berry v. Midtown Service Corp., 2 Cir., 104 F.2d 107, 122 A.L.R. 1341, certiorari dismissed 308 U.S. 629, 60 S.Ct. 297, 84 L.Ed. 525; In re Gottman, 2 Cir., 118 F.2d 425; Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts in "Inferior" Federal Courts — A Study in Separation of Powers, 37 Harv.L.Rev. 1010

6
 "It appearing that Gus Hall, Carl Winter, Gilbert Green, Robert G. Thompson and John Gates are defendants-appellants in the above entitled case and presently under bond in the sum of $20,000.00 each pending appeal from their convictions, which bond inter alia is conditioned upon each of said defendants-appellants remaining within the jurisdiction of the Southern District of New York, and it further appearing that each of said defendants-appellants resides outside the Southern District of New York and is desirous of returning to the Federal District in which his home is located * * * to be with his family and to take care of his affairs, it is hereby
"Ordered that each of said defendants-appellants, Gus Hall, Carl Winter, Gilbert Green, Robert G. Thompson and John Gates is hereby given permission to depart from the Southern District of New York upon the following express conditions and subject in all other respects to the conditions of the bonds aforesaid: That he may depart from the Southern District of New York and go to the Federal District in which his home is located to be with his family and attend to his affairs temporarily; that he will return to the Southern District of New York whenever ordered by this Court so to do; that in case he removes from his present home or changes his address, he shall forthwith inform the United States Attorney for the Southern District of New York to that effect; that Robert W. Dunn, who executed the bail bond for each of the defendants-appellants hereinabove named, shall give his written consent to the making and entry of this order; and that Robert W. Dunn, Frederick V. Field, Dashiell Hammett, W. Alphaeus Hunton and Abner Green, Trustees of the Bail Fund of the Civil Rights Congress of New York, shall give their written consent to the making and entry of this order, and it is further
"Ordered that for any violation of any of the conditions hereinabove named by any of said defendants-appellants the bond of such defendant-appellant shall be forfeited."

7
 That this was a notice to appear for the order of commitment, rather than that order itself, raises no question; the notice, too, formed part of the court's command. See Pettibone v. United States, 148 U.S. 197, 206, 13 S.Ct. 542, 37 L.Ed. 419

15
BIGGS, Circuit Judge (concurring in part and dissenting in part).

16
I concur in the majority opinion in all respects save one. I cannot agree that a conviction for criminal contempt may be sustained on facts from which it is shown that the United States Attorney had given notice to an attorney of a proposed order requiring his client to appear for execution of sentence, even though the inference is properly supportable that the attorney informed his client of the proposed order. The pertinent statute is Section 401(3), Title 18, U.S.C.1

17
On June 28, 1951, the mandate of the Supreme Court in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, was about to be handed down, and Hall was on bail as one of the defendants-appellants whose judgment of conviction had been affirmed by the Supreme Court in the Dennis case. The United States Attorney that day caused to be served on most of the attorneys for the defendants-appellants in Dennis a "Notice of Settlement" to the effect that an "Order on Mandate" would be presented for signature by the court on the morning of July 2, 1951.

18
The proposed order contained the following unusual provision: "* * * and it is further ordered, adjudged and decreed that the defendants [including Hall] personally surrender to the United States Marshal for the Southern District of New York in Room 318, United States Court House, Foley Square, New York, N. Y., on the ___ day of July, 1951, at 10:30 o'clock in the forenoon on that day."

19
Hall was represented of record in the Dennis proceeding by Attorney Gladstein but Attorney Sacher, who was counsel of record for other defendants therein, accepted service of the proposed order on behalf of Hall by signing the "Admission of Service" by "Richard Gladstein by HS."

20
On June 29, 1951, the United States Attorney and Mr. Sacher appeared in open court before Judge Ryan. Mr. Sacher had an application which he desired to make respecting the sentences of all the defendants-appellants in the Dennis case and another application going particularly to the sentence of the defendant-appellant Stachel and he desired to obtain rules to show cause on both applications. The United States Attorney wished to have Judge Ryan sign the "Order on Mandate" containing the provision quoted above. Judge Ryan refused to make any orders in Dennis because he was of the opinion that he did not possess the power to enter any order therein until the mandate of the Supreme Court had been received by the United States District Court for the Southern District of New York.

21
It was anticipated that the mandate would be received by Monday, July 2.2 The court said among other things, "We will pass on everything at that time." Counsel indicated that this would be satisfactory. Judge Ryan then stated: "All right. I won't sign these orders but it is understood that these applications will be heard on Monday."

22
It was stipulated by the United States Attorney and by Mr. Sacher at the hearing on the contempt proceeding on November 21, 1951, that he had seen Hall "* * * sometime on Friday [June 29] at 35 East 12th Street in New York City." Mr. Sacher stipulated also that on Friday, June 29, he had informed Hall that his presence would be required in court on July 2. It was agreed at the hearing of November 21 that at a hearing on July 3 before Judge Ryan, the court asked Mr. Sacher, "Did you tell them at that time [June 29] that their [Hall's] presence was required in court yesterday morning [July 2]?" Mr. Sacher replied, "Definitely. As a matter of fact I advised that because I think I saw them among the other defendants after I had been here on Friday [June 29], your Honor, and had made these motions, and therefore advised that they all should be and I was assured that they * * * [would] be [in court on July 2]." This was the extent of Mr. Sacher's admission by stipulation. He was not sworn nor did he give any evidence at this or any prior or subsequent hearing.3

23
Early on the morning of June 30 Hall absconded, being apprehended at Laredo, Texas, some months later. On July 2 at 11:05 A. M. Judge Ryan signed the order of which Hall has been adjudged to stand in contempt. On July 2 the figures and letters "2nd" were inserted in the blank before the word "day" preceding the phrase "of July, 1951" in the face of the paragraph heretofore quoted and the figures "10:30" were stricken out before the word "o'clock" and there was inserted therein the figures "11:05." Judge Ryan then signed the order. It then read as to the particular paragraph with which we are concerned as follows: "* * * and it is further ordered, adjudged and decreed that the defendants [including Hall] personally surrender to the United States Marshal for the Southern District of New York in Room 318, United States Court House, Foley Square, New York, N. Y., on the 2nd day of July, 1951, at 11:05 o'clock on the forenoon of that day." The order was of course not served on Hall. There is no evidence that he had actual notice or knowledge that the proposed order was ever signed until the contempt specifications were served on him.

24
The "Specifications of Criminal Contempt," under which Hall has been found guilty (Paragraph "B" thereof), state: "The contemnor disobeyed and resisted the * * * [order of July 2] by failing to surrender on said date or at any other time prior to his apprehension at Laredo, Texas, on October 10, 1951." The supporting affidavit of the United States Attorney alleges: "Upon information and belief, respondent Hall well knew4 of the outstanding orders and decrees of this court, and was in wilful and deliberate disobedience and resistance to said orders and decrees of this court * * * and was therefore in criminal contempt of this court and of its authority." A rule was entered on the specifications and the affidavit, and the instant proceedings were commenced. Hall's answer therefore, was not and could not have been treated as evidence of his knowledge of the signed order of July 2, for he was charged with contempt prior to the filing of his answer.

25
The question posed is a narrow one and may be restated as follows: Conceding, as it must be, that Hall knew on June 29 that an order requiring him to appear on July 2 for execution of his sentence might be made by Judge Ryan on July 2, is this knowledge sufficient to sustain his conviction of contempt of the order of July 2?

26
Despite Hall's contentions to the contrary I entertain no doubt but that the order of July 2 was a valid one when entered. But on June 29 no valid order requiring Hall to appear on July 2 was in existence: none had been made and, indeed, the court below was technically without the power to enter any order in the Dennis case for the Supreme Court's mandate had not been received. If Hall is to be held to answer for contempt of the July 2 order, (1) facts must be shown from which the court below was entitled to infer that Hall knew the order of July 2 had been entered, or (2) Hall must be held responsible on an application of a theory of constructive notice.

27
As to (1) supra, there is no evidence in the record from which the court below could have inferred that Hall knew that the order of July 2 had been entered.

28
As to (2) supra, can the theory of constructive notice be properly applied under the circumstances of this criminal case? It is true that the doctrine of constructive notice as distinguished from actual notice or knowledge is frequently applied in civil injunction, or other civil, proceedings. A party to a civil suit, civil injunction proceedings in particular, is on notice as to any future order which the court may enter in his case. As an extreme illustration, if a complaint to enjoin waste has been filed and the court has jurisdiction of the cause of action and of the defendant and if prior to a decree or judgment against him the defendant cuts the woods or lays waste the farmland, he does so at his peril and may be held in contempt of a valid decree entered by the court. In New York, under the Civil Practice Act, Section 882, as amended by Laws 1930, c. 378, any notice which the court deems sufficient to apprise a defendant of an application for a temporary injunction is deemed sufficient to render the defendant chargeable with a breach of the injunction when entered. See George F. Stuhmer & Co. v. Korman, 143 Misc. 246, 256 N.Y.S. 253. See also 2 Daniels, Chancery Practice, 6th Am. ed. 1684, 2 High, Injunctions, 4th ed. Sections 1420 and 1452.

29
Constructive notice is notice which is implied by law. Prouty v. Devin, 118 Cal. 258, 50 P. 380. Constructive notice assumes that no information concerning the prior fact has been directly and personally communicated to the party but is inferred by operation of legal presumption. See 2 Pomeroy, Equity Jurisprudence, Section 593, 5th ed. 1941. Nonetheless, constructive notice is held to be sufficient by the great weight of authority in civil suits. But no case has been cited to us and I have found none where the doctrine of constructive notice has been applied in a criminal case including a criminal contempt proceeding. Though the United States places great reliance on the decision in Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419, the Pettibone decision does not support the Government's position for it is too far removed in its facts from the instant case.5 Indeed in the Pettibone case the opinion strongly indicates, albeit by way of dicta, that scienter, viz., knowledge of the existence of a fact which is an essential element of the crime, must be alleged and proved. In the instant case an essential element of the crime was knowledge on the part of Hall that the order of July 2 had been entered.

30
In United States v. Day, 25 Fed.Cas. pp. 793, 795, No. 14,934, reference is made to the curtailment of the inherent contempt power of federal courts by the act of March 2, 1831, 4 Stat. 487. The Master in the Day case stated that this statute "* * * was beyond doubt intended as a guide for the courts, and to forbid in future all constructive contempts", and for an act to constitute a contempt, "* * * there must be a decree or order in existence, and a disobedience or resistance to such decree or order." Cf. In re Sixth & Wisconsin Tower, 7 Cir., 108 F.2d 538. The Day decision is one dealing with constructive contempt rather than constructive notice. That the Supreme Court has drastically curtailed the operation of the theory of constructive contempt has been so recently demonstrated as to require no extended discussion. See Matter of Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 90 L.Ed. 30, and Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, overruling Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186. Hall's counsel contends that in the whole course of our law as well as that of England there has been no proceeding like the one at bar. The view asserted may be an exaggerated one but exhaustive independent research has disclosed no similar case. It is probably the first time that a proceeding like this has been before the courts.

31
Hall was charged with a crime, a criminal contempt. See In re Fox, 3 Cir., 96 F.2d 23, 25. To base a conviction for criminal contempt upon constructive notice is too close to basing a conviction on constructive contempt. But the question presented in the instant case is really one of due process. Proof of actual notice or knowledge on Hall's part that the order of July 2 had been entered is a constitutional requirement under all the circumstances. Moreover, the United States Attorney did not base his charge on constructive notice but on actual knowledge. He alleged that Hall "well knew" of the order of July 2.

32
It may be asserted that this view bestows a benefit on the convicted defendant who, when his appeal has failed, does not surrender himself for execution of his sentence but absconds. A question of great public policy is here involved, however. The constitutional question aside, can it be said that Congress in enacting Section 401, Title 18, U.S.C. intended its provisions to have the United States courts base convictions for criminal contempt on orders not yet entered? When the statute speaks of an "order," the reasonable conclusion is that it means an order in esse.

33
It is suggested, however tacitly, in the brief of the United States and it was argued before this court, that, by reason of the colloquy during the hearing of June 29, 1951 (set out in pertinent part in note 2, supra) and the stipulation that Mr. Sacher had told Hall to be present in court on July 2 (as he should have been) the court below, prior to July 2, issued a "command," within the purview of 18 U.S.C. Section 401(3), that Hall be in court on July 2; and, since Hall was not in court on July 2 in response to this "command," he was properly adjudged guilty of contempt in the instant proceeding. This view of the case has been adopted by the majority opinion.6 But this court ruled in Berry v. Midtown Service Corporation, 104 F.2d 107, 110, Judge Clark dissenting, that it had to be shown that "* * * a party must have violated an express court order before he can be punished for contempt under the final clause of Section 385 [of former Title 18]", citing Ex parte Buskirk, 4 Cir., 72 F. 14, Dakota Corp. v. Slope County, 8 Cir., 75 F.2d 584, and Morgan v. United States, 8 Cir., 95 F.2d 830.

34
Hall was held to answer in the contempt proceeding for violation of the express order of July 2, 1951 entered by Judge Ryan on that day and insofar as the record before us shows, no other "command" was given by the court. This was the consistent attitude of Judge Ryan and of the parties to the contempt proceeding and, veritably, the theory on which the case was tried. See, for example, Judge Ryan's statements at page 29 of the transcript of the contempt hearings and his opinion. It follows that my difficulty in holding Hall guilty of contempt is not one merely of pleading. The reason that I cannot agree with the majority on this phase of the case lies in the fact that the colloquy quoted in note 2, supra, and the stipulated fact that Hall's counsel had directed him to be in court on July 2, could not support an adjudication of guilt for criminal contempt against Hall even had the case been tried (as it was not) on the theory that Hall was guilty of contempt of a "command" by the court, issued prior to the express order of July 2.

35
I would reverse Hall's conviction and direct his acquittal of the charge of contempt based on Judge Ryan's order of July 2.

Notes:

1
 Section 401 is as follows:
"A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as —
* * * * *
"(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."
See also the original Act of September 24, 1789, 1 Stat. 83 and the Act of March 2, 1831, 4 Stat. 487-488.

2
 The following colloquy took place on June 29, 1951, between the court and counsel respecting all the motions:
"Mr. Sacher: Mr. Saypol has told you, I think, that he has served an order returnable Monday morning at 10 o'clock to make the mandate of the Supreme Court the order of this Court.
"May I ask your Honor to be good enough to withhold the signing of that order until you have heard our arguments on Monday?
"The Court: Yes, the matters will all come up on Monday at the same time as these two applications.
"Mr. Sacher: You have my word that all of these defendants will be here at that time.
"The Court: We will pass on everything at that time.
"Mr. Sacher: Good enough.
"Mr. Saypol: Satisfactory.
"The Court: All right. I won't sign these orders, but it is understood that these applications will be heard on Monday.
"Mr. Sacher: Very good. Thank you." See the transcript of June 29, 1951, filed September 28, 1951.

3
 Mr. Sacher stated later, during the course of the contempt proceeding, that he had not informed Hall of the order of July 2. The statement, however, does not constitute evidence for Mr. Sacher was not under oath when he made it

4
 Emphasis added

5
 In the Pettibone case the defendants were indicted under R.S. §§ 5399 and 5440, 18 U.S.C.A. §§ 371, 1503, for corruptly conspiring to interrupt the course of justice in a United States Court. The United States Circuit Court for the District of Ohio had issued an injunction in a labor dispute to restrain the defendants from attempting to prevent by any force or intimidation any employee of certain mining companies from going to work. The Supreme Court quashed the indictment because it did not allege that the purpose of the conspiracy was to obstruct the administration of justice by the court issuing the injunction or to violate the injunction
Mr. Chief Justice Fuller laid emphasis on the fact that it was necessary for the defendants "* * * to have [had] knowledge or notice or information of the pendency of proceedings in the United States court * * *." See for example, 148 U.S. at pp. 205, 206 and 207, 13 S.Ct. 542, 546. Referring to Savin, Petitioner, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150, Mr. Chief Justice Fuller stated: "In matters of contempt, persons are not held liable for the breach of a restraining order or injunction unless they know or have notice, or are chargeable with knowledge or notice, that the writ has been issued or the order entered, or at least that application is to be made; but without service of process, or knowledge or notice or information of the pendency of proceedings, a violation cannot be made out." See 148 U.S. at pp. 206-207, 13 S.Ct. 542, 546, citing inter alia, 2 High, Injunctions, 3rd ed., Sections 1421 and 1452. But in the Pettibone decision it is pointed out that whenever knowledge is an essential ingredient of the offense and not implied by a mere statement of the prohibited act itself scienter is a necessary element, one which must be alleged and proved.
The words quoted above from Mr. Chief Justice Fuller's opinion were employed by him by way of an analogy between the facts of contempt proceedings and those of the cited case. Knowledge of the defendants of the injunction issued by the United States Court for the District of Ohio was deemed an essential element of the crime, an operative fact which had to be both alleged and proved.

6
 The statements made by Judge Ryan and Mr. Sacher on July 3, 1951, that Hall's presence in court on July 2 had been "required" at first blush lend color to this view. But, as I have said, Hall's counsel stated, albeit on his word, only that he would have Hall in court on July 2. Judge Ryan then stated that he would hear the applications, including the proposed order requiring Hall to appear, on July 2


589 So.2d 403 (1991)
Mack C. RUFFIN, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 90-2495.
District Court of Appeal of Florida, Fifth District.
November 14, 1991.
Rehearing Denied December 6, 1991.
James B. Gibson, Public Defender, and Noel A. Pelella, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Rebecca R. Wall, Asst. Atty. Gen., Daytona Beach, for appellee.
HARRIS, Judge.
In July 1978, Mack C. Ruffin, Jr. was convicted in Sumter County of first degree murder and sexual battery. The convictions arose from the sexual assault and murder of a 21 year old pregnant woman, Karol Hurst.[1] Ruffin was sentenced to death on the murder conviction and a thirty year concurrent term on the sexual battery. He appealed both sentences to the Florida Supreme Court and both sentences were affirmed.[2] He then applied to the United States Supreme Court for a writ of certiorari, which was denied.[3] Again in state court, he filed a 3.850 motion to set aside his convictions which was denied. The Florida Supreme Court affirmed.[4] He later applied to the Florida Supreme Court for a writ of habeas corpus, but was unsuccessful.[5]
Ruffin then brought an action in the federal district court for habeas corpus relief, challenging both his murder and sexual assault convictions. The district court refused to issue the writ and he appealed *404 to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit found no error in the convictions, but found error as to the death sentence and remanded the case to the district court with instructions to grant the writ unless the state either resentenced appellant on the murder conviction, or vacated the death sentence and imposed a lesser sentence.[6] On February 20, 1989, the United States District Court for the Middle District of Florida ordered the trial court to resentence appellant within 90 days as to the murder sentence.
A retrial of the murder conviction penalty phase was then conducted, in which the jury recommended life imprisonment. On October 19, 1990, the court sentenced appellant to life (25 years minimum mandatory) to run consecutive to any other sentences. The trial court vacated the original 30 year concurrent sentence for sexual battery (not required by the Eleventh Circuit decision) and resentenced appellant to a life term to be served consecutive to the earlier life sentence and any other active sentences. Ruffin again appeals.
He argues that the trial court lacked jurisdiction to modify and increase his sexual battery sentence because it was not properly before the court and that such a modification violates double jeopardy. The state argues that the trial court had the authority to modify the sentence within sixty days from the mandate issued by the federal court under the provisions of Rule 3.800(b) Florida Rules of Criminal Procedure. We find, however, that Rule 3.800(b) may not be used to increase a legal sentence after it has commenced.
Once a person begins serving a lawfully imposed sentence, he may not thereafter be resentenced for an increased term of incarceration. Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990), rev. denied, 576 So.2d 291 (Fla. 1991). In Royal v. State, 389 So.2d 696 (Fla. 2nd DCA 1980), the Second District held that where the original five year sentence for a defendant convicted of third degree murder was a legal sentence, the trial court erred in resentencing defendant to 15 years. See also Wilhelm v. State, 543 So.2d 434 (Fla. 2nd DCA 1989) (motion to correct illegal sentences, made approximately one year after sentencing, did not give trial court authority to modify legal sentences that had been rendered on other counts); McKinley v. State, 519 So.2d 1154 (Fla. 5th DCA 1988) (resentencing defendant for both attempted murder and forgery, upon remand from appeal of attempted murder sentence, was error in that forgery conviction was unaffected by appeal); Kelly v. State, 508 So.2d 788 (Fla. 5th DCA 1987): holding limited in part by Franklin v. State, 526 So.2d 159 (Fla. 5th DCA 1988), approved, 545 So.2d 851 (Fla. 1989) (double jeopardy was violated by trial court's resentencing of defendant on remand as to count that was unaffected by prior appeal).
Although in Wood v. State, 582 So.2d 751 (Fla. 5th DCA 1991) we permitted the trial court to impose a new sentence (arguably greater sentence) on remand on the remaining count when one of two counts was reversed, in Wood the remaining count was before the court for resentencing. That is not so in the present case.
REVERSED with instructions to reinstate the original sentence for sexual battery.
COWART and GRIFFIN, JJ., concur.
NOTES
[1]  In a separate indictment, appellant and his codefendant were charged with the murder of a police officer. Both were convicted and sentenced to life. See Hall v. State, 403 So.2d 1319 (Fla. 1981).
[2]  Ruffin v. State, 397 So.2d 277 (Fla. 1981).
[3]  Ruffin v. State, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981).
[4]  Ruffin v. State, 420 So.2d 591 (Fla. 1982).
[5]  Ruffin v. Wainwright, 461 So.2d 109 (Fla. 1984).
[6]  Ruffin v. Dugger, 848 F.2d 1512 (11th Cir.1988); reh. denied, 858 F.2d 746 (11th Cir.1988).


    THIRD DIVISION

    December 2, 1998

No. 1--97--3389

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

)	Circuit Court of

Plaintiff-Appellee,		)	Cook County.

)

)

v.				)

)

)

JOHN CROSS,						)	Honorable

)	Joseph J. Urso,

Defendant-Appellant.	)	Judge Presiding.

JUSTICE BURKE delivered the opinion of the court:

Defendant John Cross appeals from an order of the circuit court denying him two of four supervised off-grounds passes from the Elgin Mental Health Center.
(footnote: -6)  On appeal, defendant contends that the trial court's judgment was against the manifest weight of the evidence and that it erred in placing the burden of proof upon him as to whether the passes should be granted.  For the reasons set forth below, we affirm.

In 1981, defendant, believing he was acting on orders from God, murdered two women and attempted to murder another woman and her husband after invading their home in order to kill "witches and warlords [warlocks]."  Defendant was found unfit to stand trial in 1981.  In 1982, defendant was found not guilty by reason of insanity, remanded to the custody of the Illinois Department of Mental Health and Developmental Disabilities (DMHDD), and subsequently resided at the Elgin Mental Health Center (Elgin).  Over the course of 15 years, defendant received treatment for his illnesses, which included schizophrenia, paranoid type, alcohol abuse, and other narcotics abuse.  On October 26, 1995, Elgin's director recommended defendant receive unsupervised on-grounds passes and supervised off-grounds passes.  On January 25, 1996, the trial court held a hearing and, based on its determination that the State bore the burden of proof, granted the unsupervised on-grounds passes, but denied the supervised off-grounds passes.  Defendant appealed the denial of the supervised off-grounds passes, and we remanded the cause, holding that the trial court erred in placing the burden of proof on the State.
Cross I
, 289 Ill. App. 3d 876.  More specifically, we found that defendant, not the State, had the burden of proof in the hearing to modify his treatment plan pursuant to section 5--2--4(b) of the Unified Code of Corrections (730 ILCS 5/5--2--4(b) (West 1996)).  Subsequently, the need for further hearings on the October 26, 1995, pass recommendation was rendered unnecessary by the filing of a new recommendation with the trial court by Elgin's director on April 9, 1997, again requesting supervised off-grounds passes in behalf of defendant for the purpose of continuing his treatment.  Specifically, the Director, based on defendant's treatment team's recommendation, sought four passes for defendant to: (1) "attend outpatient group psychotherapy at the Isaac Ray Center"; (2) "attend an outpatient chemical dependency group in the community"; (3) "visit with his children" at his mother's house; and (4) "attend other supervised off-ground activities which the Treatment Team deems beneficial," including visits to half-way houses and a community reintegration program.

At a hearing on August 18, 1997, on the director's recommendation, defendant presented two witnesses.  Albert Stipes, M.D., a forensic psychiatrist employed by the Forensic Clinical Services of the Cook County Circuit Court, testified that he examined defendant on May 19, 1997, pursuant to court order.  Stipes diagnosed defendant's illness as "[s]chizophrenia, paranoid type, in partial remission with medication and polysubstance abuse."  Stipes based his diagnosis on his personal examinations of defendant in 1997 and 1993, as well as records from Forensic Clinical Services and Elgin.  Stipes stated that defendant was currently receiving medication for his illness through an injection every 28 days.  It was Stipes' opinion that defendant was not a risk to harm himself or others, able to "provide for his basic physical need as to guard himself from serious harm," not subject to involuntary admission, and ready for the type of passes requested.  Stipes further stated that the passes would not interfere with defendant's medication or treatment, would enhance his treatment, would not lead to a resumption of drug use, would not lead to an escape, and would provide reasonable assurances of public safety.  In Stipes' opinion, the passes "[were] necessary to assure his [defendant's] progress.  It's part of the treatment."  Stipes characterized defendant's behavior as "cooperative with the staff and *** no incidents of violent behavior or any threat to others or harm to others or to himself during his stay."

  On cross-examination, Dr. Stipes stated that defendant's treatment records began in 1993, but that defendant's mental illness existed for a long period of time before that.  Stipes limited his testimony on direct examination to incidents of violence during the period from 1993 onward only.  However, Stipes stated he was aware that in November 1993 defendant became hostile to staff when they suggested that he increase group and socialization activity, and as a result, defendant was placed in another unit for observation after this incident.  In addition, in April 1994, defendant became sexually involved with another patient which resulted in the birth of twin girls.  This activity resulted in defendant's privileges of living in the William White Unit (a less restrictive unit within Elgin) being revoked.  Stipes further stated that defendant still resided in a more secure unit at Elgin, and had not regained his privilege of living in the William White Unit.  Stipes admitted that since defendant began receiving the injections of the medication Haldol, there was an incident, in February 1996, when he refused to take another medication, Cogentin, designed to counteract the adverse side effects of the Haldol.  Stipes also testified that in December 1994, defendant was provoked by another patient and responded by slapping the patient, but Stipes did not consider this an incident of violence since defendant was provoked; in February 1996, defendant asked the staff for a month off from any events or programs because he did not want to participate; defendant had always been considered a "loner" and the staff and doctors attempted to get defendant to integrate himself and become more social; in May 1997, defendant reiterated his desire not to integrate himself into the community; and defendant had indicated that he did not feel he needed anymore therapy, either psychiatric or polysubstance.

Raymond Sipowicz, a psychologist at Elgin, who had been defendant's individual counselor for approximately two years at the time of the hearing, also testified in behalf of defendant.  Dr. Sipowicz stated that he had had contact with defendant for approximately a total of 3-1/2 years.  He met with defendant once a week for individual counseling, which increased to twice a week upon defendant's request.  Over the last few years, defendant had become "much more expressive," and "much more concerned about what's going on within himself and within his behavior."  Sipowicz concluded that defendant's request for more counseling sessions was "a positive indication of some personal growth."  Sipowicz made his determination about recommending the supervised off-grounds passes after reviewing all of defendant's records, as well as his own personal examinations of defendant.  Sipowicz's opinion was that defendant's illness went into remission around 1990 based upon the behavioral changes he noticed in defendant.  Defendant became less aggressive and irritable, stopped having hallucinations and became better at handling stress.  According to Sipowicz, the recommended passes would not interfere with defendant's continued medication, cause him to resume using illegal drugs, cause him to harm himself or others, or pose a threat to public safety and, would in fact, further his treatment.  Sipowicz further stated that at the time of the hearing, defendant had unsupervised on-grounds passes, which allowed defendant to move around different parts of Elgin to attend different activities without being directly supervised by a staff member.  Throughout the period that defendant had these on-grounds passes, he followed the rules, never tried to escape or to injure himself or others, and the passes allowed defendant to interact and socialize with other patients, furthering his integration treatment.

Dr. Sipowicz further testifed that the facility director's recommendation for the passes arose out of an evaluation of defendant by the Isaac Ray Center that recommended working to integrate defendant slowly back into the population.  According to Sipowicz, some of the steps Isaac Ray and his treatment team sought to employ with defendant were visits to half-way houses, evaluation of his home and neighborhood, and community reintegration which involved visits to local malls, libraries, and learning to use public transportation.  Sipowicz further stated that "one of the thrusts of the Isaac Ray report *** [was] that that man [defendant] has only known a very structured secure setting for a long time and needs to be able to just get out and see what the outside world is like."

The State cross-examined Dr. Sipowicz regarding defendant's need for treatment and whether defendant's progress was significant.  Sipowicz acknowledged that defendant required "supportive counseling," as well as medication to keep his illness in remission.  With respect to defendant's monthly injections of medication, Sipowicz stated they were begun after several problems with defendant failing to take his medication prior to 1990.  Sipowicz also acknowledged that for five days in February 1996, defendant refused to take his Cogentin, and in May 1996, a notation in one of Sipowicz's reports showed that defendant lacked motivation regarding his substance abuse group; defendant was of the opinion that he no longer needed substance abuse counseling, even though the staffs at both Elgin and Isaac Ray both believed he did.  Sipowicz further stated that in February 1996, defendant "experienced very complex emotional reactions [and] *** was frustrated and discouraged by the [trial] Court's rulings."

Sipowicz further testified that he was aware that in April 1994 defendant allegedly became aggressive with a staff member who had asked defendant to turn down his radio.  Sipowicz also stated that in May 1994, defendant indicated that he could determine which people were righteous and which were not righteous by looking for a white aura around the person.  Sipowicz stated that he did not consider this necessarily a delusion, and explained that it is difficult to differentiate between some delusions and religious beliefs.  Sipowicz went on to compare defendant's beliefs with those of people who believe in angels.  Further, Sipowicz acknowledged that in December 1994 defendant was involved in a physical altercation with another patient who had provoked him.  It was Sipowicz's opinion, however, that defendant's reaction was a result of provocation by a disruptive patient and that defendant attempted to avoid a conflict.  After the incident, defendant apologized for his actions.

The State continued to cross-examine Sipowicz about incidents involving defendant after 1993.  Sipowicz stated that in December 1995 defendant was seen by a female staff member stroking his penis over his clothing.  The staff member interpreted it as inappropriate behavior directed toward her, but Sipowicz believed it was not directed toward the staff member, and that the staff member had simply walked past at an inopportune time.  Sipowicz admitted that defendant became upset when he was questioned about the incident, would not take responsibility for his actions, and was placed on restriction for a period of days.  Sipowicz also stated that when he was questioned by another staff member about the incident, defendant stated he committed the act because he "wanted some p****."  Sipowicz's interpretation of this statement was that defendant was merely angry over being questioned about his actions.  Sipowicz further stated that, in February 1996, the Elgin Fire Department responded to an alarm at the center causing defendant to become angry when his shoes became wet because of the actions of a staff member.  According to Sipowicz, defendant stated something to the effect that he "was going to get rid of that housekeeper," or that he "was gone [
sic
] to go kill that b****."  Sipowicz interpreted these outbursts as defendant merely evidencing his "intent *** to bring the matter to the attention of administration so they could remove [the housekeeper] from that position."  Sipowicz's notes from March 1996 also reflected that there were "[i]ssues of insight in [defendant's] judgment raised due to two incidents on his [defendant's] unit involving anger, becoming intimidating when he was upset."  However, according to Sipowicz, defendant had integrated himself into the Elgin community by working as a janitor throughout the center, eating, sleeping, talking, and otherwise socializing with other patients.

The State further questioned Sipowicz about an April 1997 report by a doctor named Rafferty, another member of defendant's treatment team, which indicated that defendant's participation in social treatment "remains minimal."  Sipowicz admitted that in the latter part of 1997, it was defendant's opinion that there was little need for him to have continued extensive psychotherapeutic or other treatments.  Sipowicz stated it was his opinion that he could not "see much benefit from *** [defendant] receiving any other kind of psychotherapy at Elgin," and that continued treatment required the supervised off-grounds passes.  Sipowicz admitted that Dr. Rafferty's report noted that defendant's prognosis was "fair to guarded," but Sipowicz explained that the report pertained to defendant's status for a conditional release, and not for the issuance of supervised passes.

The State did not present any evidence, and after both parties rested, the trial court granted the request for defendant's supervised off-grounds passes to attend Isaac Ray and an outpatient chemical dependency group.  The court, however, denied the supervised off-grounds pass for visits between defendant and his children and the general pass for anything the treatment team deemed necessary, stating:

"[The court] will deny the request as to visits with defendant's mother and children, and I would certainly deny very strongly other unlimited visits that Elgin asks for at this time.

I believe this is a logical step.  The next step has to be met.  If he complies with this step, it is certainly possible the other steps will follow very quickly."

This appeal followed.

Defendant contends that the trial court erred in placing the burden of proof on him, rather than the State, and requiring him to prove by clear and convincing evidence that the passes should be granted.  More specifically, defendant argues that this court should reconsider its decision in
Cross I
 because (1) our decision "contradicts earlier precedent"; (2) "the parties in
Cross I
 did not have an opportunity to argue the issue of the burden of proof"; (3) "[t]he language of the statute does not support placing the burden of proof on the defendant"; (4) the "[l]egislative history supports putting the burden on the State"; (5) "[t]he results from the hearing currently being reviewed support reversal of the decision to put the burden of proof on *** defendant" because "the judge is given the authority to micro-manage the internal decisions of the Department"; (6) "[p]lacing the burden of proof on *** defendant risks violating *** [his] right not to be deprived of liberty without due process of the law"; and (7) "[e]ven if the court is correct in placing the burden of proof on *** [defendant], the court erred in making him assume the burden by clear and convincing evidence."  The State argues that the trial court properly followed the mandate of
Cross I
, as the law of the case, as to the request for supervised off-grounds passes.

In
Cross I
, defendant sought supervised off-grounds passes to further his treatment, as in the present case.  The trial court in
Cross I
 had determined that the State had the burden of proof to prove that the court should not grant the passes.
We held that in requesting pass privileges in behalf of defendant, "the burden of proof rested with defendant because the 'petition' for pass privileges was filed by the facility director in behalf of defendant for a modification of his treatment plan, as opposed to the director's filing of a petition seeking defendant's transfer to a nonsecure setting, discharge or conditional release."
Cross I
, 289 Ill. App. 3d at 889.  We further held that "subsection (g) of section 5--2--4, which provides the only standard of review applicable to this section, requires that 'the findings of the court shall be established by clear and convincing evidence.' "
Cross I
, 289 Ill. App. 3d at 891.

In the case at bar, defendant relies on the same authority he relied upon in
Cross I
 in support of his burden of proof argument (
People v. Reed
, 126 Ill. App. 3d 1020, 467 N.E.2d 1158 (1984);
People v. Nelson
, 244 Ill. App. 3d 356, 614 N.E.2d 277 (1993);
Report, Governor's Commission for the Revision of the Mental Health Code of Illinois
, (1977)), which we previously considered and rejected.  Defendant also makes the same arguments, and cites to
Fasulo v. Arafeh
, 173 Conn. 473, 378 A.2d 555 (1977), regarding his burden of proof, deprivation of liberty and standard of proof arguments that he did in his petition for rehearing in
Cross I
, which we also rejected in denying his petition.
  Defendant also filed a petition for leave to appeal from our decision in
Cross I
, which the supreme court denied.
Cross I
, 175 Ill. 2d 535.  Accordingly, the law established in
Cross I
 is applicable to the case at bar and, therefore, we hold that the trial court did not err in placing the burden of proof on defendant by clear and convincing evidence.

We briefly note that defendant's deprivation of liberty argument is speculative and without legal support.  Defendant's reliance on
Fasulo
 is misplaced.
Fasulo
 involved civilly committed persons who petitioned for
habeas corpus
 relief challenging their confinement, and argued that due process consideration mandated periodic judicial review of the need for continued confinement, not the involuntary commitment of a defendant after a finding of not guilty by reason of insanity (NGRI), as here.  We also note that
Fasulo
 is not binding authority on this court, and that the Illinois Uniform Code of Corrections (730 ILCS 5/5--2--4 (West 1996)) is applicable to a NGRI defendant, not the Mental Health and Developmental Disabilities Code applicable to persons civilly committed (405 ILCS 5/2--102(a) (West 1996)).
People v. Owens
, 269 Ill. App. 3d 152, 154-55, 645 N.E.2d 483 (1994).  Moreover, as we stated in
Cross I
, "no due process liberty interest is involved when a defendant seeks pass privileges; the defendant is not challenging his commitment to the state facility but, rather, seeks privileges subject to the court's approval, to modify his treatment plan during his commitment status."
Cross I
, 289 Ill. App. 3d at 888.  Consequently, since the Uniform Code of Corrections controls defendant's commitment (see
Owens
, 269 Ill. App. 3d at 154-55), not the Mental Health and Developmental Disabilities Code, we find that the requirement that defendant be held in a "secure setting," pursuant to the Uniform Code of Corrections (730 ILCS 5/5--2--4 (West 1996)), governs in the present case over the requirement, as defendant argues, that a person involuntarily committed be held in the "least restrictive environment," pursuant to the Mental Health and Developmental Disabilities Code (405 ILCS 5/2--102(a) (West 1996)).  See
Owens
 269 Ill. App. 3d at 154-55.  Lastly, we further note that while defendant is correct that the "law of the case" doctrine is not applicable because the facility director filed a new recommendation for pass privileges, which is the subject of the case at bar, after we remanded
Cross I
 for further proceedings, the law this court established in
Cross I
 is nonetheless applicable to the issues of the burden of proof and the clear and convincing evidence standard.

Defendant next contends that the trial court's denial of the two supervised off-grounds passes was against the manifest weight of the evidence.  Defendant argues that he satisfied "the three-

part standard set out in 730 ILCS 5/5--2--4(b)" by evidence that there were "reasonable assurances" of his safety, the safety of others and that his treatment would continue uninterrupted and, therefore, the trial court was required to grant the passes.  The State argues that the trial court's decision was well supported by the record.

Section 5--2--4(b) provides, in pertinent part:

"Such [treatment] plan
may
 also include unsupervised on-grounds privileges, off-

grounds privileges, *** home visits and participation in work programs, but
only
 where such privileges have been
approved
 by
specific court

order
, which order may include such conditions on the defendant as the court may deem appropriate and necessary to reasonably assure the defendant's satisfactory progress in treatment and the safety of the defendant and others."  (Emphasis added.)  730 ILCS 5/5-

-2--4(b) (West 1996).

The language of this section clearly gives the trial court wide discretion in granting and tailoring passes.  The statute provides that the trial court
may
 grant the passes, and
may
 impose conditions on those passes.  730 ILCS 5/5--2--4(b).  We agree with the State that requiring the trial court to grant the passes any time a defendant's treatment team requests them because the
team
 believes they should be granted would defeat the purpose of the statute's language mandating that the passes
may
 only be granted based on the
trial

court's
 approval.  We therefore find that the clear language of the statute does not mandate that the trial court grant pass privileges solely because defendant's treatment team, including the facility director, recommends the passed be granted.

Defendant next argues the trial court's decision was against the manifest weight of the evidence because all the witnesses recommended granting the passes and because "[n]o evidence was presented to indicate that the passes would put *** [defendant] or the public in danger; "[t]here was no evidence indicating that *** [defendant's] treatment would *** be interrupted as a result of granting the passes; and "[d]enying the recommended passes is likely to interfere with *** [defendant's] continued progress and treatment."  The State argues that the trial court must consider all the evidence presented and then make a determination independent of the recommendation.

In
People v. Williams
, 140 Ill. App. 3d 216, 488 N.E.2d 649 (1986), the defendant was found not guilty by reason of insanity of attempted murder and aggravated battery.  The trial court, after an initial evaluation by the DMHDD, found the defendant subject to involuntary admission and ordered the defendant remanded to the DMHDD for 15 years.  On appeal, the defendant contended that there was no evidence to support his involuntary confinement because there was no "explicit medical opinion" that he was "reasonably expected to harm himself or others."
Williams
, 140 Ill. App. 3d at 226.  In rejecting the defendant's argument, the
Williams
 court first observed that while one doctor believed the defendant was subject to involuntary commitment and two others did not, "it is the trier of fact, and not the psychiatrists, who is to consider and weigh all the evidence in this case."
Williams
, 140 Ill. App. 3d at 226; see also
In re King
, 114 Ill. App. 3d 346, 352, 448 N.E.2d 887 (1983) (holding that since "the evidence as to whether the petitioner was mentally ill was conflicting, it was within the province of the trier of fact to resolve this issue").

Here, the evidence at defendant's hearing established that his doctors and counselors supported granting the passes.  Both doctors testified that defendant had made significant progress, and Sipowicz testified that he did not believe there was anything else Elgin could do to further defendant's treatment.  The doctors testified that defendant's and the public's safety could be reasonably assured, and would not interfere with his treatment.  Additionally, both doctors testified that the passes were necessary to defendant's continued progress.  However, the evidence also established that defendant had continued to have some problems over the past few years, including confrontations with staff and other patients, an improper sexual relationship, failed to take responsibility for some of his actions, lacked motivation toward his treatment, and denied the need for continued treatment.  Even though the experts provided their opinions concerning defendant's rationale concerning these problems, it was for the trial court to weigh these opinions with the other evidence and draw its own conclusions.
Williams
, 140 Ill. App. 3d at 226.  Based on the record before us, we cannot say that it was unreasonable for the trial court to conclude that while defendant had made significant progress worthy of some supervised off-grounds pass privileges to continue his treatment progress, his continuing problems, as well as his admitted lack of motivation toward continued treatment, necessitated caution in granting defendant the specific two off-

grounds pass privileges which it denied him.  Therefore, we find that the trial court's decision to deny two of the supervised off-

grounds passes was not against the manifest weight of the evidence.

Defendant next argues that the "handful of incidents" and the circumstances under which his problems arose in the past "cannot be used to prevent him from receiving the passes for which he *** [was] recommended."  However, defendant fails to cite to applicable authority in support of his argument.  Nor does he demonstrate why the trial court could not consider past problems, especially problems that occurred within the recent past, in determining whether to grant the passes.  Instead, defendant merely states, relying on
People v. Shelton
, 281 Ill. App. 3d 1027, 1034, 667 N.E.2d 562 (1996), that "even serious mental illness may be treated in a relatively short period of time," to suggest that mainly current, and not past, conduct should be considered by the trial court.  However,
Shelton
 addressed an insanity acquittee's right to file petitions for discharge or conditional release (
Shelton
, 281 Ill. App. 3d at 1034);
Shelton
 did not hold that past conduct may not be considered by a trial court in determining whether to grant pass privileges.

Defendant next argues that the "specific instances that the State brings up have no bearing on whether the elements of the statutory standard [
sic
] have been met."  Again, however, defendant fails to cite to authority supporting his assertion why the ability to interact with the staff and residents appropriately is not relevant to the trial court's determination whether granting certain pass privileges would place defendant or the public in danger.  Moreover, we believe that it would be reasonable, based on the evidence in the record, for the trial court to conclude that defendant's problems, including physical altercations with staff and other patients, indicated that defendant still posed a danger to himself and the public.  Consequently, we cannot say that the trial court erred in considering defendant's past behavior in denying the two supervised off-grounds passes.

Defendant next argues that his "current attitude should not be a barrier to his receiving the proposed passes."  Defendant was admittedly "not thoroughly interested in every aspect of his treatment."  Again, we believe that defendant's "attitude," given the evidence introduced at defendant's hearing of his belief that he needs no further psychiatric or polysubstance abuse treatment, which both the doctors at Elgin and Isaac Ray agree he needs, was a matter for the trier of fact and we cannot say that it was unreasonable for the trial court to consider this as a factor in concluding that the two passes at issue should be denied.

Defendant also argues that the trial court "should not second guess *** [the treatment teams's] decision [to recommend passes] without a reason.  *** Rather, the judge should defer to the decisions of those in the best position to be making them."

We first observe that, contrary to defendant's assertion that the trial court did not give a reason for its denial of the passes, the gist of the trial court's ruling was that, based on the evidence it heard, it believed granting two of the passes while denying the two at issue here was "a logical step, [and that] [t]he next step has to be met.  If he complies with this step, it is certainly possible the other steps will follow very quickly."  Additionally, defendant cites to no authority requiring that the trial court specify its reasons for the denial of pass privileges.  Moreover, the fact that the trial court denied the two passes logically implies that the court believed defendant was a danger to himself or the public based on defendant's continued problems of interacting with staff and patients at times.

Further, as discussed above, it is the trier of fact, not the psychiatrists, which is to consider and weigh all the evidence.  The trial court heard all the testimony by the doctors and had an opportunity to observe defendant throughout the hearing.  The evidence established that defendant had made progress recently, he had learned better control over his temper and anger, he had become somewhat more social, he no longer suffered from the delusions that caused him to commit the acts he was committed for, he had taken steps to begin preparing himself for release by learning a skill, he demonstrated an interest in providing for his daughters, his psychosis was in remission with the aid of medication, and he had sought out additional counseling in excess of what the treatment team had provided.  However, the evidence also established that defendant still failed to take responsibility for his actions at times, was not able to always control his temper, lacked motivation at the time for further treatment, believed he needed no additional therapy, had refused certain medications for no apparent reason, received his current medication through injections because in the past he had refused medication, and the Isaac Ray Center believed defendant needed a slow integration into the community beginning with treatment at the Center.  Given all these facts, we believe the trial court reasonably concluded that defendant had progressed to deserve the supervised off-grounds passes for further treatment at Isaac Ray and an out-patient chemical dependency group, but that, given the problems defendant continued to have, the supervised off-grounds passes for visits with his children in his mother's home and for whatever other treatment activities his treatment teams deemed necessary, were not appropriate.

Lastly, contrary to defendant's argument, the trial court was not limiting defendant's treatment.  The court in fact was providing by granting two of the passes at this time, what Dr. Sipowicz stated defendant needed; "some hope that he can some day lead a relatively normal life."  The trial court's determination that defendant was not ready for the passes to visit his children and mother outside of the hospital or a high level of reintegration without the additional therapy that everyone agreed only the Isaac Ray Center can provide was supported by the evidence that defendant still had problems with his anger, socialization skills, and his refusal to take responsibility for his actions.  Clearly, the trial court was in the best position to weigh the evidence, observe the witnesses, and observe defendant.  See
Bazydlo v. Volant
, 164 Ill. 2d 207, 647 N.E.2d 273 (1995).

In summary, we hold that the trial court's denial of the supervised off-grounds passes for defendant to visit his children and mother at his mother's home and for whatever other activities his treatment team felt necessary was not against the manifest weight of the evidence.  Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CAHILL, P.J., and LEAVITT, J., concur.

FOOTNOTES
-6:
The present appeal is defendant's fourth to this court.  In
People v. Cross
, No. 1--87--0307 (1989) (unpublished order under Supreme Court Rule 23), we affirmed the trial court's denial of defendant's petition for discharge.  In
People v. Cross
, 274 Ill. App. 3d 159, 653 N.E.2d 1308 (1995), we affirmed the trial court's determination that a natural life sentence is to be utilized as the maximum period of defendant's involuntary commitment.  In
People v. Cross
, No. 1--95--1053 (1996) (unpublished order under Supreme Court Rule 23), we affirmed the trial court's order denying defendant's petition for unsupervised on-grounds passes and supervised off-grounds passes.  In
People v. Cross
, 289 Ill. App. 3d 876, 684 N.E.2d 135 (1997),
appeal denied
, 175 Ill. 2d 535 (
Cross I
), we determined that the trial court erred in placing the burden of proof on the State at the hearing on the petition for supervised off-grounds passes, and remanded the cause to the trial court for further proceedings.


                                                            I attest to the accuracy and
                                                             integrity of this document
                                                               New Mexico Compilation
                                                             Commission, Santa Fe, NM
                                                            '00'04- 11:36:49 2012.10.11

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-100

Filing Date: August 13, 2012

Docket No. 30,089

PETER SINCLAIRE,

       Plaintiff-Appellant,

v.

ELDERHOSTEL, INC., a
foreign corporation,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
James A. Hall, District Judge

The Okon Law Firm
Christa M. Okon
Santa Fe, NM

for Appellant

Tinnin Law Firm, P.C.
Stanley K. Kotovsky, Jr.
Albuquerque, NM

for Appellee

                                       OPINION

FRY, Judge.

{1}     In this case we consider what our Legislature intended when it enacted the statute
requiring employers to pay overtime wages for hours worked in excess of forty hours in “any
week of seven days.” We conclude that “any week of seven days” means a fixed and
regularly recurring workweek established by an employer consistent with the federal Fair
Labor Standards Act (FLSA) and regulations promulgated under the authority of the FLSA.
We reject Plaintiff Peter Sinclaire’s argument that the employer’s workweek, for purposes

                                            1
of calculating overtime pay, should change each time an employee’s work schedule changes.
Because our interpretation coincides with that of the district court, we affirm the district
court’s judgment.

BACKGROUND

{2}     The parties do not dispute the following facts. Sinclaire began work as an employee
of Elderhostel in January 2006.1 Included with the letter from Elderhostel offering Sinclaire
employment were documents explaining the procedures for payment of wages and
instructions for completing time sheets, and Sinclaire acknowledged receipt of these
documents. The documents stated that Elderhostel’s workweek was from 12:01 a.m. Sunday
to midnight the following Saturday. The documents also instructed Sinclaire to complete
one time sheet for each week (Sunday through Saturday); if Sinclaire’s program crossed over
a Saturday, he was to complete two time sheets.

{3}      Sinclaire led educational tours for Elderhostel, some of which corresponded with the
Sunday-to-Saturday workweek and some of which began on Wednesday and concluded the
following Wednesday. As a result of Elderhostel’s established workweek and Sinclaire’s
work schedule, if Sinclaire led a Wednesday-to-Wednesday tour “that required him to work
forty-two hours from Wednesday through Saturday and forty-eight hours from Sunday to
Wednesday, for a total of ninety hours[, Sinclaire] would not receive overtime pay based on
the fifty hours he worked over forty” from Wednesday to Wednesday. Instead, Sinclaire
would receive ten hours of overtime—two hours in the first Sunday-to-Saturday workweek
and eight hours in the second workweek. However, if Sinclaire’s program ran from Sunday
to Saturday, as it often did, and if he worked more than forty hours during that program
week, he would receive time-and-a-half overtime for each hour over forty.

{4}     Sinclaire believed that Elderhostel should be paying him overtime based on the week
he actually worked rather than on the Sunday-to-Saturday workweek. Because Elderhostel
disagreed with this view, Sinclaire filed a claim for unpaid overtime wages with the New
Mexico Department of Labor in February 2007. The Department ultimately dismissed the
case for lack of jurisdiction, and Sinclaire filed a complaint in magistrate court. The
magistrate court dismissed the complaint on the ground that Sinclaire had failed to prove the
allegations in his complaint. Sinclaire then appealed the dismissal to the district court.

{5}     The parties filed cross-motions for summary judgment on the issue of what
constitutes a “workweek” under the then-applicable version of NMSA 1978, Section 50-4-22
(2005) (amended 2007), which provided that “[a]n employee . . . shall not be required to
work more than forty hours in any week of seven days, unless the employee is paid one and

       1
       Sinclaire claimed he was also due overtime wages for the period from mid-2005 to
January 2006, during which time he claims Elderhostel mis-designated him as an
independent contractor rather than an employee.

                                             2
one-half times the employee’s regular hourly rate of pay for all hours worked in excess of
forty hours.” Section 50-4-22(C) (emphasis added)2. Sinclaire argued that the statute, which
is part of the New Mexico Minimum Wage Act (MWA), 1978 NMSA, §§ 50-4-19 to -30
(1955, as amended through 2009), is remedial in nature and should therefore be liberally
construed in light of its goal of protecting the worker. Consistent with this liberal
construction, Sinclaire maintained, the emphasis is on the term “any” in the phrase “in any
week of seven days.” Consequently, Sinclaire argued, he should receive overtime wages for
any hours in excess of forty hours that he worked during any seven-day period, regardless
of whether the period began on Sunday or Wednesday or any other day of the week.

{6}     Elderhostel argued that the MWA does not define any “week of seven days” and that,
as a result, Section 50-4-22(C) should be interpreted consistent with the FLSA, 29 U.S.C.
§§ 201 to 219 (2006). Regulations promulgated under the FLSA provide that “[a]n
employee’s workweek is a fixed and regularly recurring period of 168 hours—seven
consecutive [twenty-four]-hour periods” that “may begin on any day and at any hour of the
day.” Overtime Compensation, 29 C.F.R. § 778.105 (2011) (emphasis added). “Once the
beginning time of an employee’s workweek is established, it remains fixed regardless of the
schedule of hours worked by him.” Id. Thus, Elderhostel maintained that it appropriately
established a Sunday-to-Saturday workweek and properly calculated Sinclaire’s overtime
wages on the basis of that workweek.

{7}    Following a hearing on the cross-motions, the district court granted Elderhostel’s
motion for summary judgment and denied Sinclaire’s motion. This appeal followed.

DISCUSSION

{8}    This case requires us to interpret Section 50-4-22(C), and we therefore undertake de
novo review. See N.M. Dep’t of Labor v. Echostar Commc’ns Corp., 2006-NMCA-047, ¶
5, 139 N.M. 493, 134 P.3d 780 (stating that “[c]onstruction of statutes is a question of law
that we review de novo”). We also review the grant of summary judgment de novo.
Rodriguez v. N.M. Dep’t of Workforce Solutions, 2012-NMCA-059, ¶ 8, 278 P.3d 1047.

{9}     On appeal, Sinclaire makes the same argument that he made in the district court. The
crux of his argument is that an employer must calculate each employee’s workweek on the
basis of the seven-day period the employee actually works, not on the basis of a fixed seven-
day period arbitrarily established by the employer. Thus, according to Sinclaire’s view, his
workweek with Elderhostel would sometimes be from Wednesday to Tuesday and
sometimes from Sunday to Saturday, or it could be an entirely different seven-day period,

       2
         Section 50-4-22(C) was amended in 2007 and is now Section 50-4-22(D), which
states, “An employee shall not be required to work more than forty hours in any week of
seven days, unless the employee is paid one and one-half times the employee’s regular
hourly rate of pay for all hours worked in excess of forty hours.”

                                             3
depending on his schedule. Elderhostel would be required to calculate Sinclaire’s wages
based on his “roving” workweek.

{10} We must determine what the Legislature intended by the language of Section 50-4-
22(C), which requires an employer to pay time-and-a-half to an employee who works more
than forty hours “in any week of seven days.” See Christus St. Vincent Reg’l Med. Ctr. v.
Duarte-Afara, 2011-NMCA-112, ¶ 9, 267 P.3d 70 (explaining that the primary goal in
interpreting statutes is to further legislative intent), cert. granted, 2011-NMCERT-010, ___
P.3d ___. If the meaning of a statute is clear and unambiguous, we apply the statute as
written. See Bishop v. Evangelical Good Samaritan Soc’y, 2009-NMSC-036, ¶ 9, 146 N.M.
473, 212 P.3d 361. However, “where the language of the legislative act is doubtful or an
adherence to the literal use of words would lead to injustice, absurdity[,] or contradiction,
the statute will be construed according to its obvious spirit or reason, even though this
requires the rejection of words or the substitution of others.” Id. (alteration, internal
quotation marks, and citation omitted).

{11} As the district court observed, the statutory phrase at issue here—“any week of seven
days”—is not “crystal clear.” Sinclaire contends that the focus should be on the word “any”
such that an employee is entitled to overtime pay during any seven-day period. Elderhostel
maintains that the phrase should be interpreted so that it is consistent with the FLSA and that
“any week of seven days” permits different employers to establish whatever fixed seven-day
workweeks they desire.

{12} To determine which view more likely furthers the Legislature’s intent, we turn first
to the stated purpose of the MWA. Section 50-4-19 of the MWA states:

       It is declared to be the policy of this act (1) to establish minimum wage and
       overtime compensation standards for all workers at levels consistent with
       their health, efficiency and general well-being, and (2) to safeguard existing
       minimum wage and overtime compensation standards which are adequate to
       maintain the health, efficiency and general well-being of workers against the
       unfair competition of wage and hours standards which do not provide
       adequate standards of living.

This declared policy recognizes that overtime standards protect workers’ health and well-
being by ensuring that workers are paid a premium for hours worked beyond the number of
hours deemed to be a reasonable maximum per week. See Echostar, 2006-NMCA-047, ¶
7 (explaining that overtime statutes intend “to compensate those who labored in excess of
the statutory maximum number of hours for the wear and tear of extra work and to spread
employment through inducing employers to shorten hours because of the pressure of extra
cost” (internal quotation marks and citation omitted)). This policy is not inconsistent with
Elderhostel’s establishment of a fixed workweek. Employees of Elderhostel receive
overtime wages for every hour in excess of forty that they work in a given Sunday-to-

                                              4
Saturday workweek, which qualifies as a “week of seven days” as required by Section 50-4-22(C).

{13} Sinclaire argues that the MWA is a remedial statutory scheme and, therefore, it must
be interpreted liberally to accomplish its purpose. See Echostar, 2006-NMCA-047, ¶ 7.
While we agree that this is a correct statement, we do not agree that a fixed workweek
thwarts the MWA’s remedial purpose. Elderhostel employees are paid overtime wages
earned during the Sunday-to-Saturday workweek, which is consistent with the purpose of
paying a premium for hours in excess of forty in order to protect workers’ health and well-
being.

{14} In addition, there is nothing in the MWA or our case law that would preclude our
interpreting the MWA as being consistent with the FLSA. Indeed, we have stated in
reference to the MWA and the FLSA that “[w]hen two statutes cover the same subject
matter, we attempt to harmonize and construe them together in a way that facilitates their
operation and the achievement of their goals.” N.M. Dep’t of Labor v. A.C. Elec., Inc., 1998-
NMCA-141, ¶ 20, 125 N.M. 779, 965 P.2d 363. The FLSA regulations’ requirement of a
fixed workweek does not do violence to either the language or the purpose of Section 50-4-
22(C).

{15} We recognize that this Court has declined to follow the FLSA when we consider it
to be inconsistent with state law. For example, in Echostar, we held that the fluctuating
workweek method of calculating overtime, while acceptable under the FLSA, is inconsistent
with Section 50-4-22(C). Echostar, 2006-NMCA-047, ¶¶ 11-12, 17. The fluctuating
workweek method permits an employer to pay an employee “a fixed weekly salary plus an
overtime factor of one-half of the hourly rate, which hourly rate is calculated such that it
decreases as the number of hours worked increases.” Id. ¶ 1. Given the MWA’s stated
policy, we concluded that “it makes little sense to construe the statute to lessen the financial
impact on employers the more hours that employees are required to work.” Echostar, 2006-
NMCA-047, ¶ 7.

{16} Echostar is distinguishable because a fixed workweek does not necessarily favor the
employer under all circumstances. One treatise suggests that a fixed workweek can be
advantageous to the employee as well as to the employer. For example, “if an employee
works [thirty] hours one workweek and [fifty] hours the next, he or she must receive
overtime compensation for the [ten] overtime hours worked in the second workweek, even
though the average number of hours worked in the two weeks is [forty].” I Ellen C. Kearns,
The Fair Labor Standards Act, ch. 10.III.A, at 10-8 (2d ed. 2010). This example is the flip-
side of the situation Sinclaire complains about in the present case where the tour at issue did
not coincide with Elderhostel’s workweek and the overtime pay required was to
Elderhostel’s advantage. Thus, the fixed workweek can sometimes be more beneficial to the
employee and sometimes more beneficial to the employer.

{17} Sinclaire maintains that Elderhostel manipulated its workweek and established it so
as to avoid paying the maximum amount of overtime. We are not persuaded. Sinclaire

                                               5
presented no evidence suggesting that Elderhostel established a Sunday-to-Saturday
workweek in order to evade its obligation to pay overtime. In fact, in support of his motion
for summary judgment, Sinclaire submitted one of his schedules, which showed that of
thirty-two weeks Sinclaire worked, twenty-one weeks started on days other than Wednesday;
of those twenty-one weeks, sixteen started on Sunday, which was the first day of
Elderhostel’s established workweek. Thus, for at least half the time, Sinclaire received the
maximum overtime available under any calculation. The rest of the time, Sinclaire received
overtime premium pay as required by Section 50-4-22(C), even if it was not as much as he
would have received if the workweek had begun on Wednesday. See Abshire v. Redland
Energy Servs., LLC, 822 F. Supp. 2d 874, 877 (W.D. Ark. 2011) (noting the “general rule”
that “an employer may establish a pay week that differs from its employees’ work week if
it is for a legitimate, or bona fide, business reason . . . even when a change in payroll
schedule results in decreased payments of overtime compensation to [the] employees”);
Kerbes v. Raceway Assocs., LLC, 961 N.E.2d 865, ¶ 29 (Ill. App. Ct. 2011) (noting that an
employer’s work schedule that does not coincide with its established workweek “does not
deny [the employee] overtime, although it may prevent him from receiving the maximum
overtime to which he would be entitled if we accept his contention that a workweek is any
and every consecutive seven days that he labors” (internal quotation marks and citation
omitted)).

{18} Although we generally agree with Sinclaire that state law can provide greater
protection for employees than the FLSA, we are not convinced that Section 50-4-22(C) was
intended to adopt anything inconsistent with the FLSA’s definition of the workweek. It
makes sense that employers should be required to establish a fixed workweek (or different
fixed workweeks for different types of employees) in order to have predictability and
certainty about payrolls. So long as an employer pays its employees a premium for the
overtime hours worked in the established workweek, that employer is in compliance with
Section 50-4-22(C).

CONCLUSION

{19}   For the foregoing reasons, we affirm the judgment of the district court.

{20}   IT IS SO ORDERED.

                                             ____________________________________
                                             CYNTHIA A. FRY, Judge

WE CONCUR:

____________________________________
CELIA FOY CASTILLO, Chief Judge

____________________________________

                                             6
MICHAEL D. BUSTAMANTE, Judge

Topic Index for Sinclaire v. Elderhostel, Inc., No. 30,089

APPEAL AND ERROR
Standard of Review

EMPLOYMENT LAW
Fair Labor Standards Act
Minimum Wage Act

STATUTES
Interpretation
Legislative Intent
Rules of Construction

                                           7