942 F.2d 508
Donald McDOUGALD, Appellee,v.A.L. LOCKHART, Director Arkansas Department of Correction, Appellant.
No. 90-2193.
United States Court of Appeals,Eighth Circuit.
Submitted March 14, 1991.Decided Aug. 19, 1991.Rehearing and Rehearing En BancDenied Oct. 7, 1991.

1
Olan Reeves, Asst. Atty. Gen., argued (Kelly Hill, Asst. Atty. Gen., on brief), Little Rock, Ark., for appellant.

2
John D. Ogles, Jacksonville, Ark.

3
Before FAGG and LOKEN, Circuit Judges, HAMILTON,* District Judge.

4
HAMILTON, District Judge.

5
Appellant A.L. Lockhart, Director of the Arkansas Department of Correction, appeals the district court's granting of Appellee Donald McDougald's petition for writ of habeas corpus under 28 U.S.C. § 2254.1  We reverse.

6
Appellee Donald McDougald (hereinafter McDougald) was one of three men charged with capital felony murder with burglary as the underlying felony.   The other two were John Sellers (hereinafter Sellers) and Sam Angle (hereinafter Angle).   In separate trials all three were convicted of felony murder and each sentenced to life without parole.   McDougald's May 7, 1987 trial followed Sellers' trial.

7
Both Sellers and McDougald filed separate appeals.   McDougald raised two issues on direct appeal:  (1) ineffective assistance of counsel and (2) involuntary statement because of intoxication.   The Supreme Court of Arkansas affirmed McDougald's conviction on April 25, 1988.  McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988).   On May 16, 1988, the Supreme Court of Arkansas reversed Sellers' conviction as a result of instructional error, holding that a capital felony murder conviction could not be based on the crime of burglary when the state limited its proof of predicate for burglary to intent to commit assault and battery upon the victim.  Sellers v. State, 295 Ark. 489, 749 S.W.2d 669, 670-71 (1988).   The Arkansas Supreme Court relied on Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987) in reaching its decision to overturn Sellers' conviction.  Parker was decided June 15, 1987, shortly after McDougald's trial.   Sellers' case was remanded for retrial.

8
McDougald filed a pro se petition pursuant to Arkansas' Criminal Procedure Rule 37.   In that petition, McDougald raised for the first time the issue of sufficiency of the evidence to prove that he committed the murder in the course of a burglary because the underlying felony merged into the murder.2 2]  The Supreme Court of Arkansas declined to address the issue stating:

9
The petitioner first argues that the evidence was insufficient to prove that he committed the murder in the course of a burglary.   A challenge to the sufficiency of the evidence constitutes a direct, rather than collateral, attack on the judgment and must be made at trial and on direct appeal.  McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983).

10
McDougald v. State, No. CR 87-213 (Ark. Jan. 9, 1989).   The Arkansas Supreme Court denied McDougald's Rule 37 petition on January 9, 1989.

11
On February 8, 1989, McDougald then filed a petition for writ of habeas corpus asserting five grounds for relief.3  The first ground asserted was the denial of due process and equal protection because the underlying felony merged into the murder.   Adopting the proposed findings and recommendations of the magistrate, the district court granted relief.   Relying upon Sellers v. State, 295 Ark. 489, 749 S.W.2d at 670-71, the district court concluded that McDougald was denied due process because the state erroneously proved capital felony murder by showing a burglary, the object of which was a battery that merged into and was not independent of the murder.   The district court also held that the claim was fairly presented because it could have been decided in the Rule 37 post-conviction petition.

12
The issue before this Court is whether the district court erred in holding that the Sellers issue was "fairly presented" to the state courts of Arkansas.

13
A writ of habeas corpus shall not be issued until a Defendant has exhausted all available state remedies.4  A petitioner has exhausted his state remedies when the constitutional claim has been "fairly presented" to the state court.  Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971).   Explicit citation to the Constitution or to a federal case is necessary for fair presentation of a constitutional claim in state court.  Thomas v. Wyrick, 622 F.2d 411, 413 (8th Cir.1980).

14
The district court concluded, in reaching the merits of Petitioner's claim, that the constitutional claim had been fairly presented to the last court of recourse in Arkansas when Petitioner filed his petition for post-conviction relief under Rule 37.1.   The district court determined that, had the Arkansas Supreme Court interpreted the claim as the same issue raised in Sellers, that is, as an instructional issue, rather than as a sufficiency of the evidence issue, it could have addressed the issue as one which would have voided the conviction.

15
Appellant, however, asserts the district court erred in finding the claim was fairly presented because a Sellers-type issue, an issue of trial error, is not cognizable in a post-conviction petition under Arkansas law.   Under Arkansas law, a claim that could have been raised at trial or on direct appeal, but was not, is not cognizable in a Rule 37 petition.  Long v. State, 294 Ark. 362, 742 S.W.2d 942 (1988);  Blair v. State, 290 Ark. 22, 716 S.W.2d 197 (1986).   A Rule 37 petition that merely presents constitutional arguments based upon the record will be denied because Rule 37 is not a substitute for an appeal or an alternative method of reviewing mere trial errors.  White v. State, 290 Ark. 77, 716 S.W.2d 203 (1986);  Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981).   An exception exists, however, when the constitutional claim would render the judgment absolutely void.  Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).

16
The district court held that this issue, the Sellers issue, brought the case within the exception and that the Arkansas Supreme Court could have addressed the issue on its merits in the Rule 37 proceeding.

17
Appellant, disagreeing with this holding, contends that the constitutional claim was not one that would render the conviction void and therefore did not bring the Rule 37 petition within the exception to waiver.   Under Arkansas law, a ground that is sufficient to void a conviction is one so basic that the judgment is a complete nullity.  Shockley v. State, 291 Ark. 251, 724 S.W.2d 156 (1987).   As Appellant points out, McDougald's accomplice, Sellers, was retried and convicted upon retrial.   The Arkansas Supreme Court affirmed Seller's second conviction, holding he was not subjected to double jeopardy, in that the evidence in the first trial was virtually the same as in the second and the problem associated with the first conviction concerned trial error in instructing the jury, not insufficient evidence to support the conviction.  Sellers v. State, 300 Ark. 280, 778 S.W.2d 603, 605 (1989).   Trial error is not sufficient to render a conviction void.5  The district court therefore erred in holding that the issue was one that would render the conviction void.   Consequently, the issue was not fairly presented to the state courts.

18
Once a federal court determines a claim has not been fairly presented to a state court, the court must determine if the exhaustion requirement has nonetheless been met because no non-futile state remedies are available.   If no state remedy exists, the federal court determines whether the petitioner demonstrated adequate cause to excuse his failure to raise the claim in state court.   If the petitioner can show sufficient cause, the petitioner must show actual prejudice to his defense as a result of the state court's failure to address the merits of the claim.  Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir.1988).

19
McDougald filed both a direct appeal and a Rule 37 petition.   No non-futile state remedies remain.   See, Miller v. State, 301 Ark. 59, 781 S.W.2d 475 (1989).   The Smittie analysis requires the district court to determine if petitioner demonstrated adequate cause to excuse his failure to fairly present the claim in state court.   McDougald asserts that his claim's novelty should excuse default under Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).   The district court noted that the Parker case was handed down five weeks after McDougald's trial.   The district court concluded,

20
Because counsel in the Parker and Sellers cases recognized and asserted the claim, this Court cannot find that it was 'reasonably' unknown to petitioner's counsel, or that there was 'no rational basis in existing law' to construct the argument.

21
(Magistrate's Proposed Findings and Recommendations pp. 11-12).   The district court also addressed McDougald's argument that his "actual innocence" should excuse him for establishing cause.   The district court concluded that McDougald had offered no factual basis for this argument and that the circumstances in this case were not the sort contemplated in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).  (Magistrate's Proposed Findings and Recommendations p. 12).   Furthermore, the Sellers-type error was trial error.   The district court opinion noted that trial error implies nothing with respect to the guilt or innocence of the Defendant.  (Magistrate's Proposed Findings and Recommendations p. 14, quoting Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978)).   The record supports the district court's conclusions of law concerning cause.

22
The record before this Court is sufficient to demonstrate that McDougald's claim was not fairly presented and that he cannot demonstrate sufficient cause and actual prejudice as required under the Smittie analysis.   Accordingly, the judgment of the district court granting the petition is reversed.

*
 The HONORABLE JEAN C. HAMILTON, United States District Judge for the Eastern District of Missouri, sitting by designation

1
 Order of the United States District Court in the Pine Bluff Division of the Eastern District of Arkansas, No. PB-C-89-77 (June 14, 1990)

2
 In his Rule 37 petition, McDougald stated the issue as follows:
Petitioner was denied due process, equal protection, and fundamental fairness when the court overruled his motion for directed verdict of acquittal when the state failed to prove all the elements of the crimes [with] which he was charged.   There is insufficient evidence to substain (sic) the conviction and sentence.
Although McDougald's petition contained no specific citation to the Sellers case, it related the procedural history in Sellers.   McDougald also asserted the following:
Petitioner contends that the charge of capital murder is unconstitutional in that the object element of burglary was not proven independent of murder, and that murder did not "facilitate" the crime of burglary, as required by the statute.
Petitioner contended that retrial would constitute double jeopardy.

3
 The other four grounds for relief were (1) biased jury;  (2) prosecutorial misconduct;  (3) ineffective assistance of trial counsel;  and (4) ineffective assistance of counsel on appeal.   The District Court denied relief on each of these bases.   These grounds are not before this Court for review

4
 Subsections (b) and (c) of 28 U.S.C. § 2254 provide:
(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
(c) An applicant shall not be deemed to have exhausted the remedies available in the Courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

5
 Error sufficient to void a conviction under Arkansas law appears to be limited to errors that prevent retrial.   See e.g., Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989) (no evidence to support the conviction);  Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985) (trial court without jurisdiction);  Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982) (double jeopardy)
Appellant includes a lengthy list of cases in which the petitioner claimed egregious trial error but the Arkansas Supreme Court found no error sufficient to void the conviction.   See e.g., Hedrick v. State, 292 Ark. 411, 730 S.W.2d 488 (1987) (holding claim that defendant mistakenly pled guilty to capital felony murder when intending to plead to a lesser degree of murder is insufficient to void conviction);  White v. State, 290 Ark. 77, 716 S.W.2d 203 (1986) (claim of trial error that included failure to admit relevant evidence, refusal to give requested jury instruction, limiting cross examination for impeachment, and violation of marital privilege protecting confidential communications not sufficient);  Ruiz v. State, 275 Ark. 410, 630 S.W.2d 44, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982) (challenge to constitutionality of death penalty statute not sufficient).


883 F.2d 71
Murrayv.Cabana89-119378
NO. 88-4586
United States Court of Appeals,Fifth Circuit.
AUG 03, 1989
Appeal From:  AFFIRMED

1
8/3/89.

2
---------------

* Fed.R.App.P. 34(a);  5th Cir.R. 34.2.


550 F.Supp. 549 (1982)
Harry PTASYNSKI, John Partridge, Berton W. Avery, Goldie Avery, Frederick S. Johnson, and Calvin Petroleum Corporation, Plaintiffs,
v.
UNITED STATES of America, Defendant.
Independent Petroleum Association of America, et al., Intervenors.
John PARTRIDGE, Plaintiff,
v.
UNITED STATES of America, Defendant.
Nos. C80-302, C82-050.
United States District Court, D. Wyoming.
November 4, 1982.
*550 Robert F. Nagel and Stephen Williams, University of Colorado, School of Law, Boulder, Colo., William H. Brown and Mike Sullivan, Brown, Drew, Apostolos, Massey & Sullivan, Casper, Wyo., for taxpayer plaintiffs and Ass'n intervenors.
Harold Scoggins, Washington, D.C., for intervenor Independent Petroleum Ass'n of America.
Mark White, Atty. Gen. and Stuart Fryer, Asst. Atty. Gen., Austin, Tex., for intervenor State of Texas.
George J. Domas, Liskow & Lewis, New Orleans, La., for intervenor State of Louisiana.
Gale Norton, Mountain States Legal Foundation, Denver, Colo., co-counsel for intervenors State of Tex. and State of La.
Richard L. Krause, Park Ridge, Ill., for amicus curiae American Farm Bureau Federation.
Brent Kunz, Hathaway, Speight & Kunz, Cheyenne, Wyo., for amicus curiae American Farm Bureau Federation and amicus curiae Wyoming Farm Bureau Federation.
Robert Livingston and Robert L. Baker, Dept. of Justice, Washington, D.C., for defendant United States of America.

MEMORANDUM OPINION
KERR, District Judge.
The question for consideration in this case is the constitutionality of the Windfall Profits Tax on Domestic Crude Oil. The tax is imposed pursuant to the Crude Oil Windfall Profits Tax Act of 1980, 26 U.S.C. § 4986 et seq. (Act), one provision of which, namely the Alaska oil exemption, 26 U.S.C. § 4994(e) provides the focus of this challenge. This Court has jurisdiction in accordance with 28 U.S.C. § 1346(a)(1) and 28 U.S.C. § 1331(a).
The plaintiffs are taxpayers, made up of independent domestic oil producers and/or royalty owners. The original filing also included the Independent Petroleum Association of America and more than thirty other associations of oil producers and royalty owners as plaintiffs. Though the association plaintiffs were dismissed pursuant to defendant's motion, they were allowed to remain in the action as permissive intervenors. Motions to intervene filed by the states of Texas and Louisiana were also granted. The American Farm Bureau Association and the Wyoming Farm Bureau Association were permitted to file an amicus curiae brief.
*551 The original complaint has been supplemented and amended several times. Presently pending before the Court is the Second Amended and Supplemental Complaint, filed June 29, 1981, to which the defendant has responded.
A subsequent suit filed by plaintiff Partridge (C82-050) for a refund of windfall profit taxes paid in 1980 has been consolidated with the original action.
Plaintiffs, intervenors and defendant have all filed motions for summary judgment. The issue involved is one of law and there are no facts in dispute  the action is appropriate for disposition by summary judgment.

The Windfall Profit Tax
The Act imposes an excise tax on the oil producer for the removal of domestic crude oil. The profit subject to tax is the difference between the removal price and the statutory adjusted base price (with severance and inflation adjustments). The rate of tax is determined based upon the "tier" into which the type of oil and the type of producer is categorized. A more complete picture of the categorization is presented below.

         Category                           Base Price                        Rate of Tax
         See § 4991                   See § 4989                    See § 4987
Exempt:                                   Not Applicable              No Tax
1. Oil owned by Governments
     or charities
2. Indian oil
3. Certain Alaska oil
4. "Front-end" oil, meaning
     oil the proceeds of which
     are used, subject to complex
     restrictions, to finance
     tertiary recovery
     projects.
Tier 3:
1. Newly discovered oil                       $16.55, with                       30%
2. Heavy oil                                    various
3. Incremental tertiary oil                   adjustments
Tier 2:
1. Stripper oil                               $15.20, with                   Independents-30%
2. National Petroleum Reserve                   various                            Others-60%
     Oil
Tier 1:
All other oil                              Approximately the May 1979        Independents-50%
                                           ceiling price for "upper tier"          Others-70%
                                            oil under the price control
                                                system, or about $13

Of particular import to the question of constitutionality is the exemption of certain Alaska oil. Any crude oil (other than that produced from the Sadlerochit Reservoir) which is produced from a well north of the Arctic Circle, or from a well north of the Alaska  Aleutian Range divide which is 75 miles or more from the Trans-Alaska Pipeline System is exempt from the tax. This exemption involves certain oil found only in Alaska and thus is termed "exempt Alaskan oil."

*552 The Issues

A logical presentation of the issues in this case requires that consideration first be given to the jurisdictional issue of ripeness. Defendant's allegation is that the entire issue is not ripe, at least as to these plaintiffs, because there was no oil produced to which the Alaska oil exemption could be applied during the period of time for which the refund is requested. Therefore, defendant reasons, the tax was uniformly applied during the time period involved in the suit.
Upon a finding by this Court that the issue is ripe for judicial determination, plaintiffs challenge the constitutionality of the Act on two separate theories. One theory is that the existence of the Alaska exemption makes the Act violative of the uniformity clause of the United States Constitution  art. 1, § 8, cl. 1. If the Alaska oil exemption violates uniformity, plaintiffs argue, the remedy is not simply to sever the Alaska exemption, but to invalidate the entire Act.
Plaintiffs' second constitutional challenge involves two related theories based on the fifth amendment to the United States Constitution. Plaintiffs allege that the Act as a whole is unconstitutional because one, it involves confiscation or "taking" of property requiring just compensation, and two, the tax is not rationally related to the goals which the Act seeks to achieve.

Ripeness
The refund period involved in this suit is 1980. No oil was produced in 1980 which was subject to the Alaska exemption. On the basis of these facts, defendant alleges that the tax was uniformly applied in 1980 and thus no claim for relief exists.
The absence of production in the exempt portion of Alaska during 1980 is not relevant to this Court's determination regarding the constitutionality of the Act. There is no allegation by plaintiffs that the Act is unconstitutional simply in its application, i.e. only when production in the Alaska exemption area begins and uniformity is actually in question. The contention is that the Act is unconstitutional on its face and thus, actual production in Alaska aside, plaintiffs have been and are being subjected to an invalid tax.
A matter is not ripe for adjudication when the question involved "emphasizes a prospective examination of the controversy which indicates that future events may affect its structure in ways that determine its present justiciability...." Tribe, American Constitutional Law, § 3-13 at 61 (1978). The only future event involved in this controversy is the actual exemption of Alaska oil. The lack of uniformity, in the Act itself, exists now, and has existed since the Act was passed. This alone is sufficient for a finding that the controversy before the Court is now appropriate for adjudication. However, further support for this decision can be found from the Supreme Court of the United States. Even if the question of uniformity were not actually at issue until the Alaska exemption had been effectuated, plaintiffs were subjected to a tax which was sure to become invalid. Their interest was substantial and the threatened unconstitutionality was certain to occur. "If the injury is certainly impending, that is enough." Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936); see also Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). It shall be noted here, that since 1980 the Alaska exemptions have been applied, and no purpose would be served by forcing the plaintiffs to refile a challenge to this Act.
The issue is disposed of by this Court's finding that the challenge to the constitutionality of the Act is ripe for adjudication, and shall be decided on its merits.

Uniformity
Article 1, § 8, cl. 1 of the United States Constitution provides:
The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts *553 and Excises shall be uniform throughout the United States. (Emphasis added)
The power of Congress to tax is very extensive. It has been termed "necessarily unlimited" Austin v. The Aldermen, 7 Wall. 694, 19 L.Ed. 224 (1868), "unfettered" Pacific Insurance Co. v. Soule, 7 Wall. 433, 19 L.Ed. 95 (1868), and without judicial remedy if it is merely "unwise or injurious." Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903). Of course, constitutional guidelines must be followed, but within the framework of that limitation Congress "is supreme in its action." Pacific Insurance Co. v. Soule, supra 7 Wall. at 443; McCray v. United States, 195 U.S. 27, 57, 24 S.Ct. 769, 777, 49 L.Ed. 78 (1904). The Constitution itself places only one qualification on indirect taxes  the requirement that they be uniform. License Tax Cases, 5 Wall. 462, 471, 18 L.Ed. 497 (1866); McCray v. United States, supra 195 U.S. at 56, 24 S.Ct. at 776; The Constitution of the United States of America, Analysis and Interpretation, S.Doc. No. 92-82, 92d Cong., 2d Sess. 129 (1973).
This uniformity requirement applies to all excise or indirect taxes, and has been held to be one of geographic uniformity only. Knowlton v. Moore, 178 U.S. 41, 20 S.Ct. 747, 44 L.Ed. 969 (1900). "The classic definition of geographic uniformity is that given in the Head Money Cases, 112 U.S. 580, 594, 5 S.Ct. 247, 251, 28 L.Ed. 798 (1884).... `The tax is uniform when it operates with the same force and effect in every place where the subject of it is found.'" Tribe, supra at § 5-11, p. 252, n. 3.
To clarify even further, uniformity seeks to prevent discrimination among the states. That is not to say that some states will not experience a greater burden of excise tax than others. By nature, the subjects of excise tax are not evenly distributed in every state. Some states have large amounts of the subject being taxed, some have smaller amounts, and some states have none at all. An indirect tax on articles or actions so diverse in their existence is valid, so long as in each state where the subject of the tax is found, the tax is applied, and applied with equal force. Knowlton v. Moore, supra.
In this case, the production and removal of domestic crude oil is the subject of the tax. Crude oil is not found in each of the fifty United States, and even in those states where it is found, it varies in quantity and availability. Production and removal do not take place in the same manner or at the same rate in every state where crude oil is known to be. Some states and their citizens will pay large amounts of windfall profits tax. Some states will pay no tax at all. However, these distinctions do not make the tax on production and removal of crude oil invalid for lack of uniformity. The Constitution only requires that in each state where crude oil is found, the production and removal of that crude oil be subject to the tax and taxed at the same rate. The windfall profits tax ignores this requirement. The Act, on its face, says that one state, Alaska, is not subject to the same tax, at the same rate as all the other states. This is a clear violation of the constitutional requirement of uniformity.
Defendant's argument that a rational justification for the exemption can validate its existence is not without some merit. Legitimate exemptions from tax can exist, but the exemption must be one which is not constitutionally forbidden. The Constitution has unequivocally set forth a limitation on indirect taxation  uniformity  which has been narrowly, but precisely defined by the judiciary. Distinctions based on geography are simply not allowed.

Separability
The finding that the "exempt Alaskan oil" provision of the Act is unconstitutional for lack of uniformity does not necessarily dispose of the issue of the constitutionality of the Act itself. It must further be ascertained whether the invalid provision can be stricken from the Act, leaving the valid portion to be enforced separately, or whether the entire Act must fall due to the *554 unconstitutionality of the Alaska exemption.
While several factors must be considered to reach the proper decision in each case, the test is said to be one of legislative intent. Carter v. Carter Coal, supra; 2 Sutherland, Statutory Construction, § 44.03, p. 338 (4th ed.1972). Unfortunately, even with an opportunity to carefully consider legislative history, it is not always a simple task to determine with much accuracy the lawmakers' intent. Both plaintiffs and defendant have cited examples of individual statements and commentary. The most articulate of individual observations, while providing a certain amount of insight, is not necessarily indicative of the entire Congressional spirit. American Smelting & R. Co. v. Occupational S. & H.R. Comm., 501 F.2d 504, 509 (8th Cir.1974). At times, separability clauses have been used by lawmakers to signify intent or by courts as an aid in interpretation. However, it seems clear that the presence or absence of such a provision is in no way conclusive or binding on the ultimate decision of severing or requiring the entire Act to fall. Dorchy v. Kansas, 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686 (1924); Williams v. Standard Oil Co. of Louisiana, 278 U.S. 235, 49 S.Ct. 115, 73 L.Ed. 287 (1929); Sutherland, supra at § 44.08, p. 349. The Internal Revenue Code, of which the windfall profits tax is a part, contains a general separability clause. 26 U.S.C. § 7852(a) provides:
If any provision of this title, or the application thereof to any person or circumstances, is held invalid, the remainder of the title, and the application of such provision to other persons or circumstances, shall not be affected thereby.
As explicit as this provision appears, the interpretations set forth by both sides are valid. As defendant argues, it may be read to permit the invalidation of the exemption while leaving the remainder of the Act enforceable. Or as plaintiffs argue, the entire Act could be found invalid, and this provision would allow it to be stricken from the Internal Revenue Code without affecting the remainder of the title. Consequently, this Court merely notes that a separability clause does exist in the Internal Revenue Code, but that its aid in clarification of this matter is minimal and a holding can be reached without reliance on or disaffirmance of the clause. More deferential consideration would be given were a specific separability clause written into the Act itself.
With or without consideration of the separability clause, we still face the task of interpreting legislative intent. A further clue to the purpose intended by lawmakers is provided by judicial analysis. "Since no precise ... standard may be set out ... a rule of reasonableness is invoked." Sutherland, supra at § 44.03, p. 338 and cases cited therein; the test is whether or not the legislation would have passed with the invalid features removed. Carter v. Carter Coal Co., supra; legislation is invalid in its entirety on a clear showing that "the invalid part being eliminated the legislature would not have been satisfied with what remains." Williams v. Standard Oil Co., supra 278 U.S. at 242, 49 S.Ct. at 117. Conceding that the legislative history and spirit remains somewhat of an enigma in this case, it is however clear that the Alaska exemption was the result of negotiations and compromise, and that the Act as it exists today would not have been passed without the invalid Alaska provision. H.R. Rep. No. 304, 96th Cong., 2d Sess. 30, reprinted in 1980 U.S.Code Cong. & Ad.News 410, 587, 612-13; S.Rep. No. 394, 96th Cong., 2d Sess. 35-37, reprinted in 1980 U.S.Code Cong. & Ad.News 410, 444-446; 125 Cong.Rec. S 18564 (daily ed.; Amendment No. 877 as modified), adopted at S 18567 (December 14, 1979); 125 Cong.Rec. S 18564, 18566, (daily ed. December 14, 1979); 125 Cong.Rec. S 18565 (daily ed. December 14, 1979).
"Some courts uphold the valid portion of a statute when the invalid portion can be shown not to have been the inducement for passage of the act. Conversely, where the invalid portion was the principal inducement for the passage of the statute, the whole statute must fail. (footnotes omitted)" *555 Sutherland, supra at § 44.06, p. 346. The circumstances surrounding the windfall profits tax legislation give a strong indication that the entire Act must be declared void as a result of the unconstitutional Alaska exemption. Although "principal inducement" may be attributing more weight to the Alaska exemption than it deserves, the exemption does carry sufficient import to justify a finding that its invalidation renders the entire Act void.
This Court finds yet a further basis upon which the entire Act must be struck down. Were the Alaskan exemption simply invalidated, and the balance of the Act left independently enforceable, the result would be extension of the tax to all crude oil produced in Alaska, subject of course to the categorization of the various tiers. Action of that nature amounts to judicial legislation which is not permissible and should be avoided by courts. Under the "guise of interpretation" courts cannot alter legislative intent or usurp legislative authority, 73 Am.Jur.2d, Statutes, § 197, p. 394 (1974) and cases cited therein; Sutherland, supra at § 44.13, p. 359, and this Court will not infringe on the powers and duties of Congress. Accordingly, due to the unconstitutionality of the Alaska exemption, the Act in its entirety must fall.

The Fifth Amendment
Having decided that the Windfall Profits Tax Act is unconstitutional because it violates uniformity, the Court need not rule on plaintiffs' second constitutional challenge, that based on the fifth amendment. However, the Court will note that such a challenge is without merit. The latitude of congressional power to tax has been previously noted, and within that power is the authority to select subjects of taxation. Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389 (1911); McCray v. United States, 195 U.S. 27, 24 S.Ct. 769, 49 L.Ed. 78 (1904). That a tax is too high, unwise, oppressive, burdensome, restrictive or even destructive does not provide a basis upon which the courts can void a tax invoked by Congress. McCray v. United States, supra; Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937). A tax by its very nature is destructive and burdensome.
As forceful and protective as the fifth amendment is, it does not act as a limitation on congressional power to tax granted by the United States Constitution. Even a seemingly arbitrary tax does not amount to confiscation or taking violative of due process. Brushaber v. Union Pacific Railroad, 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493 (1916); McCray v. United States, supra. The goal of raising revenue is a sufficient one to justify tax. McCray v. United States, supra. Surely no one is attempting to argue that the windfall profits tax is not a revenue raising measure. The fifth amendment challenge to the windfall profits tax is unfounded, and without merit, but unnecessary for a determination in this case.

Conclusion
For the above-stated reasons, this Court finds that the Crude Oil Windfall Profits Tax Act of 1980, 26 U.S.C. § 4986 et seq. violates art. 1, § 8, cl. 1 of the United States Constitution. The invalid portion of the Act cannot be severed, and thus the entire Act must fall.
Summary judgment will be entered in accordance with this Memorandum Opinion.

JUDGMENT
The above-entitled matter coming on regularly for hearing before the Court, taxpayer plaintiffs, intervenors and two amicus curiae appearing by and through their attorneys, Robert F. Nagel, Stephen Williams, William H. Brown, Mike Sullivan, Harold Scoggins, Mark White, Stuart Fryer, George J. Domas, Gale Norton, Richard L. Krause and Brent Kunz, and defendant appearing by and through its attorneys, Robert Livingston and Robert L. Baker, and the Court having heard the evidence and having taken said matter under advisement, and having carefully considered the pleadings, testimony and exhibits relevant and material to the matters in dispute, and the *556 memoranda submitted by counsel in support of their respective theories of the case, and having prepared and filed herein its Memorandum Opinion, finding generally in favor of the plaintiffs and against the defendant, and being fully advised in the premises;
NOW, THEREFORE, IT IS
ORDERED that plaintiffs recover of and from defendant the amount of windfall profit taxes paid by plaintiffs in March of 1980 for C80-302, and from March through December 1980 in C82-050, in such sum as may be determined by plaintiffs and defendant with interest as provided by law; it is
FURTHER ORDERED that all proceedings in this matter be stayed until a higher court has had occasion to pass upon the correctness of the trial court's decision.


426 F.2d 396
Application of John R. HAKALA.
Patent Appeal No. 8247.
United States Court of Customs and Patent Appeals.
May 28, 1970.

Richards, Harris & Hubbard, D. Carl Richards, Dallas, Tex., attorneys of record, for appellant.
Joseph Schimmel, Washington, D. C., for the Commissioner of Patents. Lutrelle F. Parker, Washington, D. C., of counsel.
Before RICH, Acting Chief Judge, ALMOND, BALDWIN and LANE, Judges, and McMANUS, Chief Judge, Northern District of Iowa, sitting by designation.
BALDWIN, Judge.

1
This appeal was taken from that part of the decision of the Patent Office Board of Appeals which affirmed the rejection of claims 6-9 of appellant's application1 as being obvious over the prior art under 35 U.S.C. § 103. At oral hearing, appellant withdrew the appeal as to claims 6 and 7, thus leaving only two claims for our consideration. The Board of Appeals reversed the rejection of five other claims.

THE INVENTION

2
Appellant's specification discloses a combination device (for historical reasons, called a "gun") designed to be inserted into the bore of an oil well drill hole for the purpose of exploding "bullets" into the casing surrounding the bore, thereby penetrating and fracturing the earth formations around the bore hole. A better understanding of the invention will be provided by resort to the application drawings:

3
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE Figure 1 shows the perforator, or detonator gun [10], which appellant describes as being "of the jet perforating type." Spaced axially along the elongated gun barrel [15], are a number of "ports" (e. g., 28 and 29 in fig. 1) which are positioned in sets, the ports of each set lying in substantially the same plane. Each port contains a separate shaped explosive charge unit containing a metal liner which explodes into fragments (the "bullets") when the charge is detonated. As further described by appellant:

4
[I]n accordance with the invention, the shaped charge units have casings with tapered ends. In each casing the base of a conical explosive charge faces a port closure member whose diameter is larger than the diameter of the casing whereby the unit may be inserted into the gun barrel through the explosion port. An elongated fuse extends through the gun barrel and is centered between and in contact with the ends of each of the units in each set.

5
Figure 2 of the drawing illustrates a set of four shaped charge units (31, 32, 33, 34). A rejection of claims specifically describing the entire gun combination was reversed by the Board of Appeals.

6
The claims on appeal are drawn to the shaped charge units shown in figures 2-4. Note that figure 2 is a cross-section through figure 1, and figure 3 is a cross-section elevation view of figure 2. Figure 4 shows a set of three shaped charge units, which, appellant says is an alternative embodiment. The elements of the shaped charge unit are recited in independent claim 62 which recites [with reference to figure 2]:

7
6. A shaped charge for a perforating gun having a plurality of threaded explosion ports in the wall thereof, which charge comprises:

8
(a) a closure member [33a] adapted to be secured in one of said ports to form a fluid-tight seal,

9
(b) a hollow tubular casing [33d] adapted to be secured at an open end thereof to said closure member and of diameter smaller than the diameter of said ports with a closed truncated conical end [33e] opposite said open end,

10
(c) a quantity of explosive [33f] in said conical end, and

11
(d) a conical metal liner [33g] engaging said explosive with the apex extending into said truncated conical end.

Claim 8 recites:

12
8. The combination set forth in Claim 6 in which said closure member is provided with a hollow tubular extension frictionally to engage the open end of said casing.

13
Claim 9 further provides that the casing 33d "is of plastic frictionally to encompass and engage said tubular extension to form a unitary charge unit."

PRIOR ART

14
Caldwell3 discloses a perforating gun wherein the shaped charge assembly contains two different units. The reference drawing is here reproduced for comparison:

15
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE Caldwell's so-called primary unit 20 (shown in figures 3 and 4) comprises an elongated tubular structure having a central aperture 28 through which the detonator fuse must be threaded and a double shaped charge, one on either end of the unit. At right angles to the axis of this central aperture and centrally located on opposite sides of the unit, are two recesses 40 and 41. In practice, the primary units are inserted into the gun through one port hole and thereafter positioned between two opposite ports. The fuse is then threaded down through the center apertures and, finally, secondary charge units 42 are inserted into position within the recesses of the primary unit through the port holes at right angles to the primary units. After the four charges are properly positioned, the port closures 13 are threaded into place. It is to be noted from figure 6 of the drawing that the secondary units 42 are comprised of hollow cylindrical casings terminating at one end in a frusto-conical shape. As is evident from figures 2 and 4, the internal structure of the primary unit 20 is essentially the same as two secondary units with their cone points facing each other. Each unit is filled with a charge of explosive (30 in the primary units, 46 in the secondary units) and each contains a metallic liner ("bullet") mounted as a sheath over the charge (designated as 31 and 47, respectively).

16
Udry4 discloses a well perforator having a single shaped charge unit rather than an assembly of three or more. The reference was cited merely for its disclosure that the charge casing may be made of plastic material.

THE REJECTION

17
Claim 8 on appeal was rejected as unpatentable over Caldwell under 35 U.S.C. § 103. Claim 9 was rejected over Caldwell in view of Udry. The examiner's reasoning was as follows:

18
* * * it is believed obvious to one skilled in the art to make the double charge unit 20 into two single units as this alteration would appear merely to be a matter of choice and design. Furthermore, the charge units of Caldwell are supported in the gun ports and abut their respective closure members. To have the closure members give additional support to the units would also be a matter of choice and design.

19
In affirming these rejections, the board stated:

20
Working from the Caldwell teachings, it appears to us that persons of ordinary skill in the art would find it obvious to connect the charge 42 to the associated closure member 13. Whether this connection be accomplished by adhesion or by frictional telescoping relationship appears to be no more than an obvious employment of known and obvious assembly expedients to expedite the employment of the Caldwell parts for the purposes taught in the reference. * * *

OPINION

21
Appellant argues that the rejections were based on hindsight reasoning. He points out that Caldwell's structure requires that his shaped charge units be separate from the explosion port caps and asserts that, if the cap were made integral with the charge unit, the patentee's device would be inoperable. Conversely, it is argued, the claimed structure

22
is an integral unit which requires only one loading step and eliminates any possibility of an improper loaded relationship between the shaped charge unit and the closure cap, Appellant's integral shaped charge unit is only required to be served directly into the port with one loading operation, thereby effecting saving of time while eliminating any possibility of improper positioning or support of the shaped charge.

23
We will agree with appellant that Caldwell's double primary units and single secondary units were specifically designed to be inserted first and then positioned before the caps are to be placed on the explosion port holes and that the resulting relationship is one of direct abutment rather than interconnection. We will also assume arguendo, although there is some dispute, that the appealed claims define an interconnected structure which differs from Caldwell's secondary units as they are shown in spaced relationship with the port closures in place in Figure 2 of the patent, supra.

24
The issue thus becomes whether one skilled in this art, aware of the Caldwell disclosure, would consider it obvious to connect the port closure caps to the charge units of Caldwell and make them into a single structure. Here we must disagree with appellant and hold that the record fairly supports the conclusion that it would be obvious.

25
While the positions of both the examiner and board are long on assertions and rather short on reasoning, we feel it is fair to consider that the remarks of the board were limited to its discussion of the secondary unit and not to the language of the examiner referring to the double charge primary unit. It becomes clear then, that the board's position was based on the presumption that there is nothing in the reference which requires that the secondary units be separated from the caps and it therefore would be obvious and, apparently, even desirable to connect the cap to the secondary charge unit. The employment of a frictional telescoping relationship would be only one of several obvious assembly expedients to accomplish the connection. Appellant has argued that having the secondary charge unit connected to the cap would prevent relative reorganization of the units to properly orient the secondary charge unit relative to the primary unit since the secondary unit would then be firmly threaded within the port. Based upon our own reading of the reference disclosure, we are not convinced that such assertion is correct and the reasoning of the board, as we have interpreted it, must prevail.

26
The examiner's reasoning, too, although it was somewhat incomplete, calls for the same conclusion. It appears that this position was based on a consideration of the entire structure disclosed by Caldwell, including the double primary charge units and the patentee's stated purpose for so designing his structure. Containing the missing premise, which we consider to have been obviously implied from the context of the examiner's remarks (although we do not wish to condone such omission), this position may be stated as follows: "One of ordinary skill in the art, aware of Caldwell's disclosure but, unlike the patentee, who was concerned with simultaneous firing of the charges in precisely the same plane, being more concerned with simple and efficient loading and replacement of the shaped charge units into the explosion ports, would consider it obvious to split the double unit of Caldwell and connect the port closure caps directly to all the charge units." Our analysis of the record before us is that there is a substantial basis for reaching this conclusion as well. Accordingly, the decision of the Board of Appeals affirming the rejection of claims 8 and 9 is affirmed.

27
Affirmed.

Notes:

1
 Serial No. 461,941, filed June 7, 1965, entitled "Perforating means for Sand Control."

2
 Claims 8 and 9, the only remaining claims on appeal, are dependent on claim 6

3
 U.S. Patent 2,873,676, issued February 17, 1959

4
 U.S. Patent 2,782,715, issued February 26, 1957


820 F.Supp. 995 (1993)
CHESAPEAKE SHIP PROPELLER CO., t/a Chesapeake Ship Propeller Co., Inc., Plaintiff,
v.
Wallace A. STICKNEY, Director, Federal Emergency Management Agency, Defendant.
No. 2:92cv514.
United States District Court, E.D. Virginia, Norfolk Division.
May 18, 1993.
*996 Gregory S. Larsen, Roy, Forehand, Laine & Larsen, P.C., Chesapeake, VA, for plaintiff.
Michael A. Rhine, Asst. U.S. Atty., Norfolk, VA, MaryEllen O'Neill, Atty. Advisor, Office of Gen. Counsel, Federal Emergency Management Agency, Washington, DC, for defendant.

ORDER
PRINCE, United States Magistrate Judge.

Statement of Facts
Plaintiff, Chesapeake Ship Propeller Company, owns property located at 4018 Bainbridge Boulevard in Chesapeake, Virginia. Plaintiff procured flood insurance through the defendant, Federal Emergency Management Agency ("FEMA") and the National Flood Insurance Program ("NFIP") by way of a Standard Flood Insurance Policy ("SFIP"). Plaintiff contends that in December 1991 and January 1992, floodwaters from heavy northeastern storms spilled over into the insured property, saturated the foundation soils and then washed them away. This allegedly resulted in settlement of the foundation and damage to the property. Plaintiff notified FEMA agents of its claim for damages on February 10, 1992, and this claim *997 was denied on May 20, 1992. Defendant contends that the damage to plaintiff's property was not caused by flood, but by continuing erosion, and that such erosion-related damages are not covered by the SFIP.

Procedural History
This matter came on for trial on April 5, 1993. The parties consented to have a Magistrate Judge conduct all proceedings in the case, including the trial, and order the entry of final judgment, pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. After the Court's initial ruling from the bench in favor of defendant, plaintiff requested leave to present authority to show that a drainage ditch adjacent to plaintiff's property is a body of water as contemplated by legislation under which the Standard Flood Insurance Policy was drafted. The Court deferred entry of final judgment in order to give plaintiff an opportunity to present "some cases that hold that within the contemplation of this statute and these insurance policies that that ditch through which flows some tidal water is a body of water...." Excerpts of Proceedings Transcript ("Excerpts Tr.") at 6-7.
On April 15, 1993 plaintiff filed a Memorandum in Support of Plaintiff's Complaint and Argument. Defendant filed a response on April 22, and Plaintiff filed a rebuttal to defendant's response on April 29. A review of plaintiff's submissions leads to the conclusion that plaintiff has not met the burden imposed by the Court, and judgment must be entered in favor of defendant.

Discussion
This case is based on a Standard Flood Insurance Policy ("SFIP") issued pursuant to congressional directives, and regulated and adopted pursuant to congressional action. See 42 U.S.C. §§ 4001-4127 (1977). Accordingly, the meaning and effect of the SFIP depends on the meaning and effect of the legislation, especially the statute authorizing and directing the regulations and defining the policy coverage. However, federal common law controls the interpretation of insurance policies issued pursuant to the NFIP. Hanover Building Materials, Inc. v. Guiffrida, 748 F.2d 1011, 1013 (5th Cir.1984); Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 135 (1st Cir.1984); West v. Harris, 573 F.2d 873, 881 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979). Furthermore, courts applying federal common law to flood insurance policies have recognized that "Congress did not intend to abrogate standard insurance law principles" by enacting the NFIP. Atlas Pallet, Inc., 725 F.2d at 135; Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir.1976).
The policy issued to plaintiff was the result of a federally subsidized program, which was designed to provide flood insurance at an affordable price. The program was established by the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4127, which is now administered by the Federal Emergency Management Agency ("FEMA"). As the court noted in Quesada v. Director, Federal Emergency Management Agency, 753 F.2d 1011 (11th Cir.1985), "Congress took this action because private insurance companies were unable to write flood insurance policies on an economically feasible basis and something had to be done to alleviate some of the extreme hardships suffered by flood victims." Id. at 1014. The expressed congressional intent of this program demonstrates that the program was designed to meet this need. The National Flood Insurance Act states:
§ 4001. Congressional findings and declaration of purpose
Necessity and reasons for flood insurance program
(a) The Congress finds that (1) from time to time flood disasters have created personal hardships and economic distress which have required unforeseen disaster relief measures and have placed an increasing burden on the Nation's resources; ...; (3) as a matter of national policy, a reasonable method of sharing the risk of flood losses is through a program of flood insurance which can complement and encourage preventative and protective measures; and (4) if such a program is initiated and carried out gradually, it can be expanded as knowledge is gained and experience is appraised, thus eventually making flood insurance coverage available on *998 reasonable terms and conditions to persons who have need for such protection.
(g) The Congress also finds that (1) the damage and loss which may result from the erosion and undermining of shorelines by waves or currents in lakes and other bodies of water exceeding anticipated cyclical levels is related in cause and similar in effect to that which results directly from storms, deluges, overflowing waters, and other forms of flooding, ... It is therefore the further purpose of this chapter to make available ... protection against damage and loss resulting from the erosion and undermining of shorelines by waves or currents in lakes and other bodies of water exceeding anticipated cyclical levels.
42 U.S.C. § 4001(a) (1977).
The SFIP was drafted to reflect the dictates of this federal legislation. The SFIP is a single-risk insurance policy; it only provides coverage for "direct physical loss by or from flood." SFIP preamble. The Director of FEMA has defined "flood" or "flooding" under the policy to include the following four categories of occurrences:
(a) A general and temporary condition of partial or complete inundation of normally dry land areas from:
(1) The overflow of inland or tidal waters.
(2) The unusual and rapid accumulation or runoff of surface waters from any source.
(3) Mudslides (i.e., mudflows) which are proximately caused or precipitated by accumulations of water on or under the ground.
(b) The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in (a)(1) of this section.
44 C.F.R. Chapter 1, Subchapter B, Insurance and Hazard Mitigation, Part 59, § 59.1 (1992). The plaintiff's SFIP contains an almost identical definition of flood. However, the policy also contains the following language under "PERILS EXCLUDED: The Insurer shall not be liable for loss: ... [by] land sinkage, land subsidence, landslide, gradual erosion, or any other earth movement except such mudslides ... or erosion as is covered under the peril of flood." Complaint, Ex. A. Of course, this exclusion will be "strictly construed against the insurer and in favor of coverage." Smith v. Horace Mann Ins. Co., 713 F.2d 674, 676 (11th Cir. 1983).
When Congress amended the flood insurance laws to add the mudslide/erosion provision, it noted that this amendment to the National Flood Insurance Act of 1968 added a new meaning to the term "flood." S.Rep. No. 583, 93d Cong. (1973), U.S.Code Cong. & Admin.News 1973, pp. 3217, 3229. Congress further noted that
such erosion and coverage is appropriate only to the extent that it is flood related; that is, sufficiently caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as a flash flood or an abnormal tidal surge or by some similarly unusual and unforeseeable event. The amendment is not intended to provide coverage for the losses incurred when properties built too close to shorelines are eventually damaged as a result of normal and continuous wearing away of land by ordinary wave action. If the loss is gradual and takes place over the course of years, it would not be covered.
Id.
"Flood related erosion" is defined as "the collapse or subsidence of land along the shore of a lake or other body of water as a result of undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water accompanied by a severe storm or by an unanticipated force of nature, such as a flash flood or an abnormal tidal surge or by some similarly unusual and unforeseeable event *999 which results in the flooding." 44 C.F.R. § 59.1. "Flood-related erosion area" or "flood-related erosion prone area" is similarly defined as "a land area adjoining the shore of a lake or other body of water which due to the composition of the shoreline or bank and high water levels or wind-driven currents is likely to suffer flood-related erosion damage." Id.
Accordingly, in order to establish coverage for flood-related erosion under the SFIP, the insured has the burden of proof to show that the collapse or subsidence of land along the shore of a natural body of water was the result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels at the time of the alleged damage.
What is meant by "erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels" has not been expressly defined in the statute or in the regulations. However, it seems clear from the legislative history and statutory language noted above that Congress did not intend to cover earth movements with flood insurance but only abnormal shoreline erosion and undermining caused by floods. See Wagner v. Director, Federal Emergency Mgmt. Agency, 847 F.2d 515 (9th Cir.1988); Sodowski v. National Flood Ins. Program, 834 F.2d 653 (7th Cir.1987), cert. denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 619 (1988); West v. Harris, 573 F.2d 873 (1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 635 (1979).
In Wagner, supra, the plaintiffs sought to recover under their SFIP for damages wrought by a rainfall-induced landslide. Plaintiffs conceded that flood waters did not damage their properties directly, but alleged that all of their damages were proximately caused by the shifting of rainwater-saturated earth beneath their property, thus the landslide exclusion of the SFIP should not apply. 847 F.2d at 522. The Ninth Circuit Court of Appeals disagreed, and in holding for FEMA stated: "As the courts have all but universally held, federal flood insurance policies do not cover losses stemming from water-caused earth movements." Id. (citing Sodowski, 834 F.2d 653, 657-59; West v. Harris, 573 F.2d 873, 877).
In Sodowski, supra, FEMA paid a claim for the damaged contents of a home inundated by a flood from the Illinois River but refused to pay for structural damage "caused by `settlement of the ground beneath the house.'" 834 F.2d at 654-55. The issue before the appeals court was whether the trial court properly interpreted the SFIP to exclude coverage for structural damages directly caused by soil settlement, itself a result of the flood. In affirming the district court, the Seventh Circuit Court of Appeals wrote:
In unambiguous terms, the policy excludes from coverage losses caused by any earth movement except mudslides or erosion. The language in the SFI Policy does not expressly except losses caused by soil settlement resulting from flooding from the earth movement exclusion. The language is unambiguous in its recitation that only losses caused by mudslides or erosion are covered. Sodowski acknowledges that the structural damage to his dwelling was caused by ground settlement but nonetheless argues for coverage because the settlement of the soil was caused by the flood.... [T]he policy clearly excludes damages resulting from any earth movement other than those caused by a mudslide or erosion. We agree with the district court that "[the settlement [of the soil or ground] which caused the damage to the house is a type of earth movement which is excluded from the coverage of the insurance policy" because it is neither a mudslide nor erosion. Therefore, we hold that Sodowski is not entitled to recover for the structural damage caused by soil settlement regardless of the cause of the soil settlement itself.
Id. at 656. In so holding the Court further noted: "The cause of the structural damage to the Plaintiff's house was settlement of the ground beneath the house, caused by a change in the consistency of the soil where the flood waters surrounded the foundation during the December, 1982 flood. The ground settlement in this case is clearly a type of land subsidence or earth movement." *1000 Id. at n. 3. There is no clearer example of a case factually analogous to the case at hand.
At trial plaintiff suggested that the one exception in the case law on this issue, Quesada v. Director, FEMA, 753 F.2d 1011 (11th Cir.1985), should apply. In Quesada, the Eleventh Circuit Court of Appeals held that the SFIP covered property damage caused by the settlement and compaction of sand fill under plaintiff's home where the settlement resulted from saturation of the fill by water from a tropical storm. The court concluded that, although an earth movement may have been the immediate cause, the flood was still a proximate cause and granted relief. Id. at 1014. This Court does not find Quesada, which has been negatively treated by several federal courts,[1] compelling. As Judge Tjoflat stated in his dissent, the Court of Appeals apparently "expanded the policy's coverage by eliminating the policy exclusion." Id. at 1014. He further cautioned that "the majority's interpretation of FEMA's standard policy affords much wider coverage than is contemplated by the National Flood Insurance Program FEMA administers and could result in premiums beyond the pocketbooks of many of our citizens the program was designed to reach." Id. Accordingly, this Court joins the Seventh and Ninth Circuit Courts of Appeal in rejecting Quesada.
Given the foregoing, and as the plaintiff evidently discovered at trial, the only way the relief sought can be awarded is if it is established by a preponderance of evidence that the subject property is on the shore of a body of water, and the damage was a result of erosion caused by flooding. As previously stated, the Court granted plaintiff leave to present cases establishing that the ditch adjacent to plaintiff's property was representative of a body of water. No such caselaw has been submitted, and no evidence to that effect was presented at trial,[2] therefore, this Court will not find that plaintiff's property is on the shore of a body of water.
Nonetheless, even if the Court had determined that plaintiff's property is on the shore of a body of water, the land movement exception for erosion or undermining caused by waves or currents of water exceeding cyclical levels would still not apply. Evidence presented at trial demonstrated that flood waters from two northeastern storms surrounded plaintiff's property in December 1991 and January 1992, saturated the foundation soils and then washed them away. Plaintiff's expert witness, John B. Walsh, testified that this resulted in undermining and settlement of the foundation and, consequently, damage to the property. Excerpt of Testimony of John B. Walsh ("Walsh Tr.") at 3-4. In regards to a drain pipe located in the ditch adjacent to plaintiff's property, Mr. Walsh further testified:
THE COURT: This problem is strictly the flooding that occurred under these weather conditions when the water came into the ditch and then overflowed the ditch?
THE WITNESS: Yes, sir. The pipe I was referring to is ... underwater.
. . . . .
THE COURT: What is the purpose of that pipe that you say is underwater?
THE WITNESS: This pipe is an outfall for the drainage system in Portlock, a large part of it, several square blocks.
THE COURT: That pipe, then, is not designed to carry the flow of water into the ditch, the flow of tidewater into the ditch?
THE WITNESS: Well, ... I believe the tide and the storm water are two separate; so that the tide is kind of incidental. It backscomes and goes in the ditch. It's the volume of storm water that caused the problem.

*1001 THE COURT: Then this pipe is for storm water?
THE WITNESS: Yes, sir.
THE COURT: From the Portlock area?
THE WITNESS: Right.
THE COURT: Now, did ... Mr. Martin say something about: The pipe was blocking up or was stopped up, and I got the impression that the stoppage of a pipe was part of this problem. Is that your understanding?
THE WITNESS: Yes, I agree with that. I didn't mean to say that wasn't part of the problem. That's a major part of the problem.
THE COURT: And it was the pipe in the drain?
THE WITNESS: Correct. It's just out of these photographs, where the material from the adjacent parking lot washed off and blocked the ditch up.
Walsh Tr. at 6-8. This passage clearly shows that the tidal water flowing into the drainage ditch adjacent to plaintiff's property was not the cause of the flooding on plaintiff's property. Instead, it was the stormwater running through the area's drainage system into the blocked ditch that caused the overflow onto plaintiff's property. Consequently, the evidence at trial did not show that plaintiff's damages were caused by "[t]he collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding the cyclical levels which results in flooding as defined in [the SFIP]," Complaint Ex. A, therefore, the erosion exception for overcoming the land movement exclusion in the SFIP would not apply.
In conclusion, the evidence presented through plaintiff's expert, John Walsh, is that the damage to the property was caused when the building settled after the flood water washed away the underlying ground. A combination of backed up tidal water in Milldam Creek and the ditch near the property following several days of a northeast storm and heavy rains prevented storm water in the Portlock area from draining out of the ditch into the Creek. After the tide and high water receded, the built up volume of storm water had only one place to go, as Mr. Walsh testified, and that was down the ditch and around plaintiff's building. The velocity of that water then receding from the building caused scouring, or erosion of the underlying ground, which in turn caused the settlement of the building and the resulting damage. Damage caused by that mechanism is not a covered risk of the policy. Furthermore, inasmuch as the plaintiff did not prove by a preponderance of the evidence that the damage to the subject property was the result of erosion or undermining of the shore of a natural body of water caused by waves or currents exceeding anticipated cyclical levels, the Court FINDS that plaintiff has failed to prove it is entitled to recover on that ground.
The Clerk is directed to enter judgment for defendant.
NOTES
[1]  See Wagner v. Director, Federal Emergency Mgmt. Agency, 847 F.2d 515 (9th Cir.1988); Sodowski v. National Flood Ins. Program, 834 F.2d 653, 659 (7th Cir.1987), cert. denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 619 (1988) (rejecting Quesada's expansion of the SFIP's coverage as "an act of judicial activism"); Moyer v. Federal Emergency Mgmt. Agency, 721 F.Supp. 235 (D.Ariz.1989).
[2]  Exhibits B, C and D, submitted with plaintiff's post-trial memorandum were not identified as exhibits in the Final Pre-Trial Order, therefore, defendant's objection thereto is SUSTAINED.


                                                                                ACCEPTED
                                                                                03-15-00303-CV
                                                                                7655680
                                                                               THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                                11/3/2015 11:01:55 AM
                                                                                JEFFREY D. KYLE
                                                                                CLERK
                            CASE NO. 03-15-00303-CV

                                                                         FILED IN
                                                                  3rd COURT OF APPEALS
                      IN THE THIRD COURT OF APPEALS                    AUSTIN, TEXAS
                                                                  11/3/2015 11:01:55 AM
                                 AUSTIN, TEXAS                        JEFFREY D. KYLE
                                                                           Clerk

                          Rosa Ena Cantu, Appellant
                                     v.
           Southern Insurance Company and Steve Dollery, Appellees

                      On Appeal from the 21st Judicial District
                             Bastrop County, Texas
                          Trial Court Cause No. 053-21
                             Hon. Carson Campbell

           Unopposed Motion to Extend Time to File Appellees’ Brief

TO THE HONORABLE COURT OF APPEALS:

      Appellees Southern Insurance Company and Steve Dollery ask the Court to

extend the time to file Appellees’ Brief.

      1.     Appellees are Southern Insurance Company and Steve Dollery;

Appellant is Rosa Ena Cantu.

      2.     There is no specific deadline to file this motion to extend time. See

Tex. R. App. P. 38.6(d). The Court may grant a motion to extend time to file a

brief and postpone submission of the case on a motion complying with Texas Rule

of Appellate Procedure 10.5(b). Id.
      3.     The deadline to file Appellees’ Brief is November 6, 2015. Appellees

request an additional thirty (30) days to file their brief, extending the time until

Monday, December 7, 2015. No previous extension of time has been granted to

file Appellees’ Brief.

      4.     The subject of this appeal is the trial court’s dismissal of the

underlying action based on dominant jurisdiction. This Court has already affirmed

a declaratory judgment in favor of Appellee Southern Insurance in the parties’

dispute. See Cantu v. Southern Ins. Co., No. 03-14-00533-CV, 2015 WL 5096858

(Tex. App.–Austin Aug. 25, 2015, no pet.). Although Appellees believe that

Appellant’s current appeal is without merit, a heavy briefing schedule, including

mandamus briefing in the Amarillo Court of Appeals; summary judgment briefing

in two federal cases; and an appellate brief in the U.S. Fifth Circuit Court of

Appeals, all due by the deadline for Appellees’ brief in this case, has left the

undersigned with insufficient time to adequately respond to the points raised in

Appellant’s brief by the current deadline.        The Court granted Appellant two

extensions of time to file her brief in this appeal, which Appellees did not oppose.

Appellees therefore request a 30-day extension to prepare a brief that will better

assist the Court in its deliberations.

      5.     This request is not sought for the purpose of delay but so that justice

may be done.

Unopposed Motion to Extend Time to File Appellees’ Brief                      Page 2
       WHEREFORE, PREMISES CONSIDERED, Appellees Southern Insurance

Company and Steve Dollery respectfully pray that the Court grant this motion to

and for such other and further relief to which Appellees may show themselves

justly entitled.

                                              Respectfully submitted,

                                              HANNA & PLAUT, L.L.P.
                                              211 East Seventh Street, Suite 600
                                              Austin, Texas 78701
                                              Telephone: (512) 472-7700
                                              Facsimile: (512) 472-0205

                                              By: /s/ Eric S. Peabody
                                                    Catherine L. Hanna
                                                    State Bar No. 08918280
                                                    channa@hannaplaut.com
                                                    Eric S. Peabody
                                                    State Bar No. 00789539
                                                    epeabody@hannaplaut.com
                                                    Laura D. Tubbs
                                                    State Bar No. 24052792
                                                    ltubbs@hannaplaut.com

                                              COUNSEL FOR APPELLEES
                                              SOUTHERN INSURANCE
                                              COMPANY AND STEVE
                                              DOLLERY

Unopposed Motion to Extend Time to File Appellees’ Brief                      Page 3
                      CERTIFICATE OF CONFERENCE

      On October 28, 2015, counsel for Appellees conferred with Audrey Guthrie,
counsel for Appellant Rosa Ena Cantu, via email regarding this motion. Counsel
for Appellant advised that she is unopposed to the relief sought.

                                        /s/ Eric S. Peabody
                                        Eric S. Peabody

                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Motion to
Extend Time to File Appellees’ Brief has been forwarded by e-service and/or
facsimile on the 3rd day of November, 2015 to:

Via Facsimile: (713) 467-8883
M. Chad Gerke
Robert L. Collins
Audrey E. Guthrie
Email: houstonlaw2@aol.com
P.O. Box 7726
Houston, Texas 77270-7726

Via Facsimile: (713) 467-8883
Christopher D. Lewis
Email: houstonlaw2@aol.com
1721 West T.C. Jester Blvd.
Houston, Texas 77008

Counsel for Appellant

                                              /s/ Eric S. Peabody
                                              Eric S. Peabody

Unopposed Motion to Extend Time to File Appellees’ Brief                 Page 4


164 P.3d 495 (2007)
Melanie MORIN, Appellant,
v.
Clarence HARRELL & Hazel Harrell, husband and wife and their marital community, Respondents.
No. 79971-7.
Supreme Court of Washington, En Banc.
Argued May 29, 2007.
Decided August 9, 2007.
*496 William Guyton Simmons, Simmons Law PLLC, Bellevue, WA, for Appellant.
Douglas Warr Nicholson, Cone Gilreath Ellis Cole & Anderson, Ellensburg, WA, for Respondents.
Robert H. Lavitt, Schwerin Campbell Barnard & Iglitzin LLP, Seattle, WA, for Amicus Curiae on behalf of Service Employees International Union 775.
Anastasia R. Sandstrom, Attorney General's Office, Seattle, WA, Carol A. Murphy, Attorney General's Office, Olympia, WA, for Amicus Curiae on behalf of State of Washington.
J.M. JOHNSON, J.
¶ 1 Article II, section 19 of our constitution provides that "[n]o bill shall embrace more than one subject" and requires that the subject "shall be expressed in the title."[1] Violation of either the single subject rule or the subject in title rule exposes a law to constitutional challenge.[2] However, such a challenge is precluded when the allegedly constitutionally infirm legislation has been subsequently reenacted or amended pursuant to properly titled legislation. Such amendment or reenactment cures the article II, section 19 defect.[3]
¶ 2 In the present case, Clarence and Hazel Harrell (Respondents) seek to raise an article II, section 19 challenge to Initiative 518 (I-518).[4] Enacted by the people of Washington in 1988, I-518 amended chapter 49.46 RCW (Minimum Wage Act or MWA) by, among other things, replacing the exemption for domestic service providers with an exemption limited to individuals employed in casual labor.[5] Since the codification of I-518 at RCW 49.46.010 in 1989, there have been multiple subsequent amendments to the statute.[6] The Respondents do not challenge the titles of these later statutes and they are presumed constitutional. In accordance with our recent decision in Pierce County v. State, 159 Wash.2d 16, 39-41, 148 P.3d 1002 (2006), we hold that the Respondents' article II, section 19 challenge is precluded by these subsequent amendments.[7] Therefore, we reverse *497 the trial court's grant of summary judgment to the Respondents.

FACTS AND PROCEDURAL HISTORY
¶ 3 In 1996, Hazel Harrell suffered a debilitating stroke. As a result, she and her husband, Clarence Harrell, began to employ caregivers to provide in-home assistance to Mrs. Harrell. In 2001, the Respondents hired appellant Melanie Morin as a caregiver. Eventually Morin became the head caregiver, assuming responsibilities for coordinating the schedules of the other caregivers employed by Respondents. Although she frequently worked over 40 hours per week, Morin was not paid any overtime wages by Respondents. In the summer of 2004, Morin asked Mr. Harrell whether she was entitled overtime wages. He told her she was not. In 2005, Morin's employment with Respondents ended. Approximately five months later, Morin filed suit against Respondents.
¶ 4 Appellant sued her former employers claiming that she was entitled to $11,871 in overtime pay under chapter 49.46 RCW in light of the amendment to RCW 49.46.010(5)(b) effected by I-518.[8], [9] After answering Morin's complaint, Respondents filed a motion for summary judgment. Respondents argued that they were entitled to judgment as a matter of law because I-518, in so far as it eliminated the exemption to the MWA for individuals employed in "domestic service," violated article II, section 19 of our state constitution. Former RCW 49.46.010(5)(b) (1988). The trial court granted Respondents' motion, concluding that I-518 violated the subject in title rule of article II, section 19. The court denied Morin's motion for reconsideration. Morin appealed to Division Three of the Court of Appeals. Before the case was argued, it was transferred to this court for direct review. RAP 4.4.

ANALYSIS
A. Standard of Review
¶ 5 The overarching question presented in this case is the propriety of the trial court's grant of summary judgment to Respondents. When reviewing an order of summary judgment, this court engages in the same inquiry as the trial court. Citizens for Responsible Wildlife Mgmt. v. State, 149 Wash.2d 622, 631, 71 P.3d 644 (2003) (citing Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982)). Summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
¶ 6 None of the trial court's factual findings have been challenged, thus they are verities on appeal. In re Contested Election of Schoessler, 140 Wash.2d 368, 385, 998 P.2d 818 (2000). Moreover, appellant concedes that she would have been exempt from the overtime law under former RCW 49.46.010(5)(b),[10] while Respondents concede that appellant would be entitled to overtime if the current version of the statute is *498 deemed valid.[11] We express no opinion as to either issue. Ultimately, the sole question before this court is whether Respondents were entitled to judgment as a matter of law based on the alleged unconstitutionality of I-518.
B. Subsequent Amendment as a Bar to an Article II, Section 19 Challenge
¶ 7 Appellant claims that the trial court's grant of summary judgment should be reversed because Respondents' constitutional claim is prohibited due to multiple, subsequent amendments to the statutory provision at issue. Respondents contend that the subsequent amendments to RCW 49.46. 010 did not cure its constitutional defect. The trial court reached the merits of Respondents' article II, section 19 challenge and determined that I-518's ballot title violated the subject in title rule. We hold that the subsequent amendments to RCW 49.46.010 cured any alleged defect in the title of I-518. Accordingly, we reverse the trial court's grant of summary judgment to Respondents.
¶ 8 In Pierce County, 159 Wash.2d at 39-41, 148 P.3d 1002, this court indicated that when a statute is challenged on the basis that its title violates article II, section 19, a later amendment to or reenactment of the statute supersedes and therefore "cure[s] any defect" in the earlier legislation. The statutory provision at issue in the present case, RCW 49.46.010, was amended to eliminate the exception to the MWA for domestic service providers in 1989 pursuant to I-518. See LAWS of 1989, ch. 1, § 1. Since that time, the legislature has amended RCW 49.46.010 at least three times. See LAWS of 1993, ch. 281, § 56; LAWS of 1997, ch. 203, § 3; LAWS of 2002, ch. 354, § 231. As part of each amendment, the legislature has maintained the "casual labor" exclusion under RCW 49.46.010(5)(b), which replaced the domestic service providers exception, pursuant to I-518. Under Pierce County, 159 Wash.2d at 41, 148 P.3d 1002, these amendments to RCW 49.46.010 cured any defects in the 1989 amendment process.[12]See also Eugster v. City of Spokane, 110 Wash.App. 212, 228-29, 39 P.3d 380 (2002) (challenge to city council's improper adoption of employment selection process under chapter 42.30 RCW (Open Public Meetings Act) barred by subsequent, proper adoption of a rule codifying the new process); Henry v. Town of Oakville, 30 Wash.App. 240, 246-47, 633 P.2d 892 (1981) (challenge to ordinance on grounds of improper enactment under the Open Public Meetings Act barred by subsequent, proper reenactment of said ordinance).
¶ 9 Respondents contend that the principle articulated in Pierce County  that an improper legislative act may be cured by subsequent proper amendment or reenactment  can never be applied to bar an article II, section 19 challenge because such challenges are substantive rather than procedural. However, this assertion is directly at odds with the language of this court's Pierce County opinion, which explicitly discussed the principle of cure by subsequent amendment as applied to an article II, section 19 challenge. 159 Wash.2d at 39-41, 148 P.3d 1002. Moreover, in Pierce County, this court expressly acknowledged the procedural nature of article II, section 19 challenges when it described the applicable rule of law as follows: "`[W]here a governing body takes *499 an otherwise proper action later invalidated for procedural reasons only, that body may retrace its steps and remedy the defects by reenactment with the proper formalities.'" 159 Wash.2d at 40, 148 P.3d 1002 (emphasis added) (quoting Henry, 30 Wash.App. at 246-47, 633 P.2d 892). This court made a similar reference in Washington Federation of State Employees v. State, 127 Wash.2d 544, 556, 901 P.2d 1028 (1995), describing an article II, section 19 challenge as an issue that "relates to constitutional form" and "legislative procedure." In sum, Respondents attempt to distinguish Pierce County on this ground of procedural versus substantive challenges is unpersuasive.
¶ 10 Respondents additionally assert that our decision in Pierce County is not dispositive because "no subsequent reenactment of Washington's Minimum Wage Act has occurred to cure the constitutional defect underlying RCW 49.46.010(5)(b)." Answer to Amicus at 11. Specifically, they argue that because the subsequent amendments to RCW 49.46.010 did not specifically alter the text of subsection (5)(b), which was modified by I-518, they are insufficient to cure I-518's alleged constitutional defect. This argument for distinguishing Pierce County also fails in light of a careful examination of the subsequent amendment at issue therein.
¶ 11 The allegedly defective 1993 law at issue in Pierce County eliminated language in former RCW 81.112.030 (1992) referencing a requirement that the public vote on ratification of the formation of a regional transit authority. See LAWS of 1993, 1 st Spec. Sess., ch. 23, § 62. In 1994, the legislature further amended this provision, leaving out the reference to public voting on ratification that was previously eliminated in 1993. See LAWS of 1994 ch. 44, § 1. This court held that the alleged title defect of the 1993 law was cured by the passage of the 1994 amendment, which was presumed to be properly titled. Pierce County, 159 Wash.2d at 40-41, 148 P.3d 1002. Here, Respondents allege that I518 improperly eliminated from RCW 49.46.010 the exemption to the MWA for domestic service providers. However, in 1993 the legislature amended RCW 49.46.010, leaving out the same language as was eliminated under I518. There is no allegation or indication that the 1993 law was improperly titled. Thus, contrary to the suggestion of Respondents, there has been a subsequent amendment to RCW 49.46.010 analogous to that deemed curative in Pierce County.[13]
¶ 12 In sum, Respondents offer no valid basis for distinguishing Pierce County. In accordance with this court's decision in that case, we hold that the challenge to I-518 is precluded by subsequent amendments to RCW 49.46.010.

CONCLUSION
¶ 13 We hold that an article II, section 19 challenge to I-518 is precluded by the several subsequent amendments to the statute first amended by that 1988 initiative (RCW 49.46.010). Thus, we reverse the trial court's summary judgment and remand for further proceedings not inconsistent with this opinion.
WE CONCUR: GERRY L. ALEXANDER, C.J., CHARLES W. JOHNSON, BARBARA A. MADSEN, RICHARD B. SANDERS, TOM CHAMBERS, SUSAN OWENS, MARY E. FAIRHURST, BOBBE J. BRIDGE, JJ.
NOTES
[1]  See City of Fircrest v. Jensen, 158 Wash.2d 384, 390, 143 P.3d 776 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1382, 167 L.Ed.2d 162 (2007) (citing State ex rel. Citizens v. Murphy, 151 Wash.2d 226, 249, 88 P.3d 375 (2004)).
[2]  Jensen, 158 Wash.2d at 390, 143 P.3d 776.
[3]  Pierce County v. State, 159 Wash.2d 16, 39-41, 148 P.3d 1002 (2006).
[4]  We have applied article II, section 19 to initiatives, although initiatives are not referred to as "bills" in the constitution. See Wash. Fed'n of State Employees v. State, 127 Wash.2d 544, 552-55, 901 P.2d 1028 (1995).
[5]  LAWS of 1989, ch. 1, § 1.
[6]  See LAWS of 1993, ch. 281, § 56; LAWS of 1997, ch. 203, § 3; LAWS of 2002, ch. 354, § 231.
[7]  The parties failed to raise the applicability of this court's decision in Pierce County in their initial briefs. In accordance with RAP 12. 1, this court requested supplemental briefing on this point prior to argument.
[8]  Prior to 1988, RCW 49.46.010(5)(b) provided that, for purposes of the MWA, the term "employee" did not include "[a]ny individual employed in domestic service in or about a private home." LAWS of 1989, ch. 1, § 1. As part of I-518, this statutory provision was amended to provide that the term "employee" does not include "[a]ny individual employed in casual labor in or about a private home, unless performed in the course of the employer's trade, business, or profession." Id.
[9]  Morin has apparently based her wages calculation on a minimum wage figure of $6.00. However, it is unclear from the record whether this is the applicable figure for the entire period of Morin's employment by Respondents or whether Morin's total accounts for the three-year statute of limitations are applicable to all MWA claims. See Seattle Prof'l Eng'g Employees Ass'n v. Boeing Co., 139 Wash.2d 824, 837, 991 P.2d 1126 (2000) (holding the three-year statute of limitations of RCW 4.16.080(3) applies to MWA claims). The trial court did not resolve these matters as it granted summary judgment to Respondents.
[10]  While there does not appear to be any Washington law directly on point, both parties cite to the Fair Labor Standards Act (FLSA) for the proposition that "domestic service" includes the type of care giving services provided by appellant. Specifically, they point to 29 U.S.C. § 213(a)(15), which provides an exemption to the FLSA for "any employee employed . . . in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves." (Emphasis added.)
[11]  The Department of Labor and Industries has indicated in a policy statement that "casual labor" is limited to work that is "irregular, uncertain or incidental in nature and duration" and has explicitly stated that "[e]mployment of housekeepers, caregivers, or gardeners on a regular basis is not considered `employed in casual labor' and such workers may be subject to the protections of the MWA." Clerk's Papers (CP) at 29; see also RCW 50.04.270 (for purposes of state unemployment compensation scheme, "[t]he term `employment' shall not include casual labor . . . [and] domestic services . . . shall not be deemed to be casual labor").
[12]  The title of the 1993 legislation was "AN ACT Relating to state government; amending RCW . . . 49.46.010." LAWS of 1993, ch. 281. The title of the 1997 legislation was "AN ACT Relating to overtime compensation for commissioned salespersons; amending RCW . . . 49.46.010." LAWS of 1997, ch. 203. The title of the 2002 legislation was "AN ACT Relating to personnel; amending RCW . . . 49.46.010." LAWS of 2002, ch. 354. The amendment challenged by Respondents is reasonably germane to the general titles of both the 1993 and 2002 laws.
[13]  A similarly curative amendment to RCW 49.46.010 was passed in 2002. See LAWS of 2002, ch. 354, § 231.


In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00279-CR
______________________________

STEPHANIE MCWHORTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 12,541

Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Stephanie McWhorter has filed a motion, signed by herself and counsel, in which she asks
this Court to dismiss her appeal.  Pursuant to Tex. R. App. P. 42.2, the motion is granted.
            We dismiss the appeal.

                                                                        Jack Carter
                                                                        Justice

Date Submitted:          February 7, 2006
Date Decided:             February 8, 2006

Do Not Publish

60;

Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
Concurring Opinion by Justice Carter

MEMORANDUM OPINION

          Duford Mitchell, a prison inmate, appeals from the dismissal of his in forma pauperis
lawsuit.  The trial court dismissed the suit as frivolous before service, stating that "based
on the pleadings the Plaintiff failed to prove the facts to support his claim."  In his petition,
Mitchell alleged the defendants had confiscated, and thereafter converted or lost, a gold
ring and a watch, with an alleged combined value of over $500.00.  He alleged that,
although the prison officials sent a ring and watch to his mother, the ring and watch she
received were not his and that, when she came to the unit to obtain the correct items, the
prison officials insisted the items she had received were the ones taken from Mitchell.
Because this lawsuit was dismissed before service, we have nothing to review except
Mitchell's pleadings and the documents attached to his pleadings.
          We review a dismissal of an in forma pauperis suit under an abuse of discretion
standard.  Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ); see
Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.—Houston [14th Dist.] 1996, writ denied).
Abuse of discretion exists where a court acts without reference to applicable guiding
principles, acts arbitrarily, or misinterprets or misapplies those guiding rules or the law.
Vacca v. Farrington, 85 S.W.3d 438, 440 (Tex. App.—Texarkana 2002, no pet.); Letson
v. Barnes, 979 S.W.2d 414, 417 (Tex. App.—Amarillo 1998, pet. denied).  Trial courts are
given broad discretion to determine whether a case should be dismissed because
(1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an
in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of
unmeritorious claims accrues to the benefit of state officials, courts, and meritorious
claimants.  See Montana v. Patterson, 894 S.W.2d 812, 814–15 (Tex. App.—Tyler 1994,
no writ).  We will affirm such a dismissal if it was proper under any legal theory.  Birdo v.
DeBose, 819 S.W.2d 212, 215 (Tex. App.—Waco 1991, no writ).  In considering the record
before us, we review and evaluate pleadings of inmates proceeding pro se in civil suits with
liberality and patience.  Foster v. Williams, 74 S.W.3d 200, 202 n.1 (Tex. App.—Texarkana
2002, pet. denied); Brewer v. Collins, 857 S.W.2d 819, 821 (Tex. App.—Houston [1st Dist.]
1993, no writ).

          This type of suit is controlled by Chapter 14 of the Texas Civil Practice and
Remedies Code.  Section 14.003(a)(2) provides that a court may dismiss before or after
service of process if the court finds the claim is frivolous or malicious.  Tex. Civ. Prac. &
Rem. Code Ann. § 14.003(a)(2) (Vernon 2002).
In determining whether a claim is frivolous or malicious, the court may
consider whether:
                                (1) the claim's realistic chance of ultimate success is slight;
                                (2) the claim has no arguable basis in law or in fact;
(3) it is clear that the party cannot prove facts in support of the
claim; or
(4) the claim is substantially similar to a previous claim filed by
the inmate because the claim arises from the same operative facts.

Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b) (Vernon 2002).

Without a Hearing, a Fact-based Dismissal Was Improper
          The Texas Supreme Court discourages courts from dismissing suits based solely
on a determination that the inmate has a slight realistic chance of success.  See Johnson
v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990);
 Mullins v. Estelle High Sec. Unit, 111
S.W.3d 268, 272 n.2 (Tex. App.—Texarkana 2003, no pet.).
          No hearing was conducted by the trial court.  When the trial court dismisses a claim
without a hearing, we are to determine on appeal simply whether the claim had no
arguable basis in law, which we review de novo.  Moreland v. Johnson, 95 S.W.3d 392,
394 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Sawyer v. Tex. Dep't of Criminal
Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).  That is
because, when a claim is dismissed without a fact hearing, the trial court could not have
determined the suit had no arguable basis in fact.  Conway v. Castro, No. 12-03-00373-CV, 2004 Tex. App. LEXIS 4479, at *3 (Tex. App.—Tyler May 12, 2004, no pet.);
Harrison v. Tex. Dep't of Criminal Justice–Institutional Div., 915 S.W.2d 882, 887 (Tex.
App.—Houston [1st Dist.] 1995, no writ); see Vacca, 85 S.W.3d at 441; In re Wilson, 932
S.W.2d 263, 265 (Tex. App.—El Paso 1996, no writ).
          Mitchell's petition alleges causes of action against the Department, Nita Burgess
(the property officer), and David Hudson (the warden) in both his or her official and
personal capacities.  Mitchell complains of conversion.
                     The Conversion Claim Against the Individuals Is Arguable
          Mitchell alleges the defendants permanently either negligently or intentionally
deprived him of personal property—his ring and watch—by confiscating them and then
refusing to produce and turn over the correct items.  Conversion is defined as the wrongful
exercise of dominion and control over another's property in denial of or inconsistent with
his or her rights.  Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 210 n.44 (Tex.
2002).  Applying the liberal standard applied to pleadings filed pro se by inmates, and
considering the facts set out in Mitchell's petition, we conclude he has thus stated a claim
for conversion that has an arguable basis in law.
          Because we find that the trial court could not have concluded there was no arguable
basis in law to dismiss, we hold that the trial court abused its discretion in dismissing the
entirety of this case as frivolous.  See Sawyer, 983 S.W.2d at 311.
          We reverse the dismissal and remand to the trial court for further proceedings
consistent with this opinion.

                                                                           Donald R. Ross
                                                                           Justice

CONCURRING OPINION

          I concur that, without a hearing, it was improper to dismiss this case as frivolous
since there was no factual basis for the finding.  Only the pleadings were before the trial
court.  I have previously suggested that a significant improvement in the administration of
the law would occur if each correctional institution in the state was equipped with video
conferencing capability connected with the trial courts in counties where those institutions
are located so that these hearings could be conducted by video conference.  See In re
Marriage of Buster, 115 S.W.3d 141 (Tex. App.—Texarkana 2003, no pet.) (Carter, J.,
concurring).  That process would avoid the difficult logistical and security problems inherent
in inmate lawsuits, provide inmates access to courts, and furnish the trial courts an efficient
system for developing a factual basis for a decision.  I urge the Legislature to authorize and
fund this procedure.

                                                                           Jack Carter
                                                                           Justice

Date Submitted:      January 6, 2005
Date Decided:         March 3, 2005