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State ex rel. Buckson v. Amato

Court of Chancery of Delaware, New Castle County

August 10, 1965

The STATE of Delaware on the relation of David P. BUCKSON, Attorney General of the State of Delaware, Plaintiff,
v.
Joseph AMATO, John Gentile, Richard Saxton, John Amato, the Estate of Louisa Alessandrini, Gene Alessandrini, Executor of the Estate of Louisa Alessandrini, Defendants. The STATE of Delaware on the relation of David P. BUCKSON, Attorney General of the State of Delaware, Plaintiff,
v.
Stanley SMULSKI, Archie Dixon, and Henry P. Gibbons, Defendants. The STATE of Delaware on the relation of David P. BUCKSON, Attorney General of the State of Delaware, Plaintiff,
v.
Joseph DiROSA, Daniel Marucci, Albert DiSalvo, Michael Benicky, Angelo Marabito, Eugene Smallwood, and Daniel M. Delcollo, Defendants. The STATE of Delaware on the relation of David P. BUCKSON, Attorney General of the State of Delaware, Plaintiffs,
v.
PETER C. OLIVERE, INC., Joseph Rossitto, Chester Zuchowski, Joseph Stant, Eugene Smallwood, Angelo Marabito, Albert Rosen, and Alphonso Gross, Defendants.

Page 54

[42 Del.Ch. 389] David P. Buckson, Atty. Gen., and Richard I. G. Jones, Deputy Atty. Gen., for the State in all actions.

Norman N. Aerenson, of Aerenson & Balick, Wilmington, for Joseph Amato and others, defendants in Civil Action No. 1707.

Joseph J. Longobardi, Jr., of Longobardi & Schwartz, Wilmington, for Stanley Smulski and others, defendants in Civil Action No. 1708.

Robert B. Walls, Jr., of Coxe, Booker, Walls & Cobin, Wilmington, for Michael Benicky in Civil Action No. 1709.

No appearance for Joseph DiRosa and others in Civil Action No. 1709.

David Snellenburg, II, of Killoran & Van Brunt, Wilmington, for Angelo Marabito, defendant in Civil Action No. 1709.

Victor J. Colombo, Wilmington, for Peter C. Olivere, Inc., defendant in Civil Action No. 1742.

Robert C. O'Hora and John P. Daley, Wilmington, for defendants Joseph Rossitto and others in Civil Action No. 1742.

SEITZ, Chancellor:

In these four actions the State, on the relation of the Attorney General ('plaintiff'), charges that the defendants were using various permisses for illegal gambling as defined in 11 Del.C. § 669 (receiving and recording horse bets), and were thereby guilty of maintaining a nuisance under 10 Del.C. § 7102. Plaintiff sought, inter alia, a permanent injunction under 10 Del.C. § 7106.

[42 Del.Ch. 390] In the first three actions filed (C.A. 1707, 1708, and 1709) plaintiff sought and obtained a preliminary injunction. State of Delaware ex rel. Bove v. Amato, State of Delaware ex rel. Bove v. Smulski, State of Delaware ex rel. Bove v. DiRosa (Del.Ch.),188 A.2d 243. In the fourth action the court ruled that a preliminary injunction should issue and thereafter denied, inter alia, a motion to dismiss or for summary judgment by certain defendants. State of Delaware ex rel. Buckson v. Rossitto (Del.Ch),191 A.2d 642.

Page 55

After the aforementioned judicial action, certain of the defendants in all four actions filed motions to dismiss and stipulated to a brief schedule which was not observed. After the court 'invited' action of some sort, certain of the parties filed briefs and this is the court's ruling on all grounds of the motions to dismiss which were briefed.

The defendants in the Rossitto case who are represented by Mr. O'Hora ('Rossitto defendants') first contend that 10 Del.C.Chap. 71 is unconstitutional because it penalizes persons claiming the privileges against self-incrimination. They say that 10 Del.C. § 7105(e) requires them to file a verified answer. First off, the section referred to ('7105(e)') deals solely with preliminary or temporary injunctions and the verified answer required there is only in connection with any application for a temporary injunction. As I construe the statute, a defendant has the usual time to answer and may file an unverified answer if he merely wishes to contest the case at final hearing.

There is nothing unusual about filing a verified answer to contest the right to preliminary relief. It is treated as an answering affidavit. Certainly a defendant cannot say that he is being deprived of his constitutional privilege against self-incrimination in the ordinary case where preliminary injunctive relief is requested and he fails to file an answering affidavit because it might incriminate him. Is the situation different because § 7105(e) requires a sworn answer to be filed in connection with a preliminary injunction application?

The failure to file a verified answer does not, as I construe the statute, result in the automatic issuance of a preliminary injunction. Indeed, under § 7105(e) the hearing on the application for a [42 Del.Ch. 391] temporary injunction can go forward to decision even though the court has extended the time for the defendant to answer. Even in the absence of an answer, therefore, the State must satisfy the court that it is entitled to the relief requested under standards appropriate to such an application. See § 7105(f); compare State ex rel. Bove v. Amato (Del.Ch.), 188 A.2d 243.

Thus, the statute as construed creates a procedure which is no different from the practice in criminal courts when the privilege against self-incrimination is invoked. If only the defendant, in such case, knows the true facts and refuses to divulge them in claiming the privlege, the available evidence will be weighed by the trier of facts and a verdict arrived at. If the verdict is adverse to the defendant, he has no right to complain that if all the facts were available (i. e., if he had not claimed his privilege), the opposite verdict would have resulted. The defendant cannot necessarily have his privilge and his verdict too. The only negative factor incident to not filing a verified answer in these actions is that the defendant's case may lack material affirmative evidence, which only he knows of, but refuses to divulge. Otherwise the same process of weighing evidence occurs. For these reasons I find that the pertinent statutes as construed do not violate the defendants' privilege against self-incrimination. Compare Ridge v. State ex rel. Tate, 206 Ala. 349, 89 So. 742; 22 A.L.R. 542.

The Rossitto defendants next contend that 10 Del.C. § 7106 violates due process in that it provides, inter alia, that evidence of general reputation of the place, in and of itself, shall be prima facie evidence of maintaining a nuisance. [1] Their reasoning is that the circumstantial evidence rule is really a due process rule and requires proof by a preponderance of the

Page 56

evidence, which is incompatible with the use of the statute.

First, it must be noted that the rule dealing with admissibility of evidence concerning a criminal defendant's reputation is not in issue here. On the contrary, only the reputation of the 'place' is made admissible by this Section. But putting this factor aside, counsel [42 Del.Ch. 392] for Rossitto defendants argue that because of the reputation provision a defendant loses if he does not choose to answer. They say that this violates due process. First off, such a defendant does not necessarily lose. The court must decide whether or not to believe the reputation evidence, and, if believed, whether a particular defendant is a party to the maintenance of the nuisance. Furthermore, this court recognizes that '* * * where circumstantial evidence is involved, the court must be even more vigilant to see that the only inference reasonably consistent with such evidence is that the place is used in the illegal manner charged', State ex rel. Bove v. Amato (Del.Ch.),188 A.2d 243, 247. The court's interpretation of the statute hardly seems to be at odds with accepted rules of evidence in this area. Thus, the contention concerning the constitutionality of the statutory provision because of the effect given reputation evidence lacks merit. I add that defendants do not contend that the prima facie effect provided by the statute is invalid because of a lack of a rational relationship between such reputation and the effect accorded it.

It is also contended by the Rossitto defendants that Chapter 71 of Title 10 is unconstitutional because it expressly exempts the State from posting an indemnity bond before a preliminary injunction may issue. Thus, they say that defendants affected by a closing order, if ultimately found not to have maintained a nuisance, will not be reimbursed for either their losses incident to the closing of the establishment, or for bond premiums paid by them in the event the premises remain open pending the final hearing as the statute permits. This, it is argued, constitutes a taking of property without just compensation and is therefore violative of State and Federal constitutional guarantees.

Since none of the Rossitto defendants are owners or lessees of the properties involved, I conclude that they lack standing to make this argument.

The Rossitto defendants and the defendant represented by Mr. Aerenson make the contention that the court is not authorized by Chapter 71 of Title 10 to grant the plaintiff's prayer to enjoin gambling activity of the proscribed type by these defendants anywhere [42 Del.Ch. 393] else within the State. While they have raised this issue by their motions to dismiss, I shall here consider them as motions to strike the prayer.

The State relies on 10 Del.C. § 7106(e) which provides:

'(e) If the existence of the nuisance is established upon the trial, a judgment shall be entered which perpetually enjoins the defendants and any other person from further maintaining the nuisance at the place complained of, and the defendants from maintaining such nuisance elsewhere within the State.'

The defendants point out that ยง 7101 defines nuisance as 'any place * * * in or upon which * * * illegal gambling is conducted, permitted, continued, or exists and the personal property and contents used in conducting or maintaining any such place for any such purpose'. 'Place' is defined by that same Section as '* * * any building, erection, or place on any separate ...


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