NAACP-Flint Chapter v. Engler Brief Amicus Curiae

    STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR GENESEE COUNTY

NAACP-Flint Chapter, Janice O’Neal,
Lilian Robinson, Flint-Genesee Neighborhood 
Coalition (United for Action),

Plaintiffs,

Honorable Archie L. Hayman
-v- No. 95-38228-CV

John Engler, Governor; Michigan Depart­
ment of Environmental Quality; Russell Harding,
Director.

Defendants.

BRIEF AMICUS CURIAE OF
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

For Plaintiffs: For Amicus Curiae:

Kary L. Moss, Esq. Elaine R. Jones
William Lienhard, Esq. Director-Counsel
NLG/Sugar Law Center Norman J. Chachkin
645 Griswold Suite 1800 David T. Goldberg
Detroit, Michigan 48226 Rachel D. Godsil 

NAACP Legal Defense and
Alice Jennings, Esq. Educational Fund, Inc.
Edwards & Jennings 99 Hudson Street, Suite 1600
407 E. Fort Street, Suite 605 
Detroit, Michigan 48226

Michael J. Haddad, Esq.

New York, New York 10013 

For Defendants:

Goodman, Eden Millender & Bedrosian Todd B. Adams
P.O. Box 30028 Paul F. Novak
3000 Cadillac Tower Assistant Attorney General
Detroit, Michigan 48226 Natural Resources Division 

5530 W. Allegan
Thomas Stephens P.O. Box 30028
1394 E. Jefferson 
Detroit, Michigan 48207

Lansing, Michigan 48909



STATEMENT OF INTEREST OF AMICUS CURIAE

The NAACP Legal Defense & Educational Fund, Inc. (the "Legal Defense Fund") 

was incorporated in 1939 under the laws of New York State for the purpose, inter alia, of 

rendering legal aid free of charge to indigent "Negroes suffering injustices by reason of race 

or color." Its first Director-Counsel was Thurgood Marshall. See generally N.A.A.C.P. v. 

Button, 371 U.S. 415, 422 (1963) (describing LDF as a "‘firm’ . . . which has a corporate 

reputation for expertness in presenting and arguing the difficult questions of law that 

frequently arise in civil rights litigation").

The Legal Defense Fund has participated as counsel of record or amicus curiae in 

numerous cases before the United States Supreme Court, as well as state courts and other 

federal courts, involving constitutional and statutory civil rights guarantees, see, e.g. Brown 

v. Board of Educ., 347 U.S. 483 (1954); Patterson v. McLean Credit Union, 491 U.S. 164 

(1989); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973); Griggs v. Duke Power Co., 401 U.S. 424 (1971).

The Legal Defense Fund has also participated as counsel in numerous environmental 

justice cases in state and federal courts, see, e.g., Houston v. City o f Cocoa, No. 89-92-CIV- 

ORL-29 (M.D. Fla., Dec. 22, 1989) (destruction of historic African-American community); 

Matthews v. Coye, No. C-90-3620 EFL (N.D. Cal. settled 1991) (lead poisoning); Thompson 

v. Raiford, No. CIV-3:92-CV-1539-R (N.D. Tex. settled 1993) (lead poisoning); Church of 

the Open Door v. Doherty, Index No. 41538-95 (Sup. Ct. N.Y. settled 1996) (challenge to 

siting of municipal waste incinerator).



INTRODUCTION

On May 29, 1997, this Court issued an oral ruling in the instant case. The Court 

held that (1) the State of Michigan and the Department of Natural Resources 

("Defendants") violated their constitutional duty to protect the health, safety and welfare 

of Michigan citizens by failing to adopt policies that would protect residents of cities like 

Flint and would provide them a fair opportunity to be heard; (2) Defendants violated the 

Michigan Air Act by failing to perform a Risk Assessment Analysis of the Genesee Power 

Station wood waste fired steam electric generation plant (the "Power Plant") in this case; 

but (3) that Plaintiffs had failed to establish that Defendants’ environmental permitting 

policies and practices violated the Elliot-Larsen Civil Rights Act, MCL 37.2101 et seq.

The Court recognized that Defendants’ grant of a permit is a necessary predicate 

to the construction and operation of the Genesee Power Plant. The Court also recognized 

that the primary burden of pollution from the Power Plant will be borne by 50,000 or more 

African Americans living south of the Power Plant and only 3,000 white residents living 

south-east of the Power Plant and that these African-American residents and those 

throughout Genesee County already suffer from significant pollution in the environment. 

Notwithstanding these findings, the Court held that there was no causal relationship 

between the Defendants’ permitting practices and the disparate impact of pollution upon 

the African-American residents of Flint that would result from the Defendants’ decision 

to issue a permit for the Power Plant.

Amicus curiae respectfully suggest that the Court should alter and amend its May 

29 Decision for two principal reasons: first, the Court’s interpretation of the elements

3



Plaintiffs must prove to establish a disparate impact claim is inconsistent with the very 

federal civil rights standards which the Court recognizes as informing interpretation of the 

Elliot-Larsen Act; second, the Court’s own findings compel the conclusion that Plaintiffs 

established a prima facie case of disparate impact.

ARGUMENT

TO ESTABLISH A PRIMA FACIE VIOLATION OF 
THE ELLIOT-LARSEN ACT, PLAINTIFFS NEED ONLY 

PROVE THAT THE DEFENDANTS’ PRACTICES RESULT IN A DISPARATE
IMPACT UPON A PROTECTED CLASS

As this Court recognized, to establish a prima facie case under the Elliot-Larsen Act, 

Plaintiffs are required to prove that Defendants’ permitting practices, while facially neutral, 

result in decisions that have a disparate impact based upon race. See Smith v. Consolidated 

Rail Corp., 168 Mich. App. 773, 776, 425 N.W.2d 220, 223(1988) (adopting for Michigan 

state law the disparate impact test set forth in Albemarle Paper Co. v. Moody, 422 U.S. 405, 

425 (1975)). The Court also correctly noted that such discrimination need not be 

intentional; "otherwise neutral policies and practices that, when actuated in real-life 

settings, operate to the distinct disadvantage of certain classes of individuals" also violate 

the Elliot-Larsen Act. Opinion at 33. In sum, "the disparate impact approach roots out 

policies that are facially neutral in their treatment of different groups, but that, in fact, fall

more harshly on one group than another and cannot be justified by business necessity." 

Opinion at 34.

In concluding that Plaintiffs in the instant case failed to establish a prima facie case 

of disparate impact, however, this Court misinterpreted the case law specifying the 

Plaintiffs’ disparate-impact burden. Plaintiffs proved that operation of the Genesee Power

4



Plant, if permitted by the Defendants, would have a severe disparate impact upon African 

Americans. Opinion at 41 ("The significant impacts of pollution fallout will be felt in the 

City of Flint, by approximately 3,000 white residents to the southeast of the plant and by 

as many as 50,000 or more African-Americans to the south of the plant.") Plaintiffs also 

proved that African Americans already suffer a disproportionate burden of pollution in 

Genesee County. Opinion at 34 - 35 ("78.2 percent of African-Americans living in Genesee 

County reside within one mile of any permitted stationary pollution source, while only 60 

percent of Genesee County’s non-black . . . population does so.") Thus, Plaintiffs have 

clearly proved disparate impact based on race. See, e.g., Coalition o f Concerned Citizens 

Against 1-670 v. Damian, 608 F. Supp. 110 (S.D. Ohio 1984) (in Title VI challenge to 

highway construction that would affect African-American community, court found plaintiffs 

established prima facie case of disparate impact).

However, while the Court stated that it would adhere to federal standards developed 

under Title VII of the Civil Rights Act in determining the elements necessary to prove a 

Michigan civil rights claim, see Opinion at 33; see also Farmington Educ. A ss’n v. Farmington 

School Dist., 133 Mich. App. 566, 573, 351 N.W.2d 242, 245 (1984), the Court held that 

societal discrimination,1 not Defendants, caused the current disproportionate burden of 

pollution, and that Plaintiffs therefore failed to meet their burden. Opinion at 35. Without 

the permit granted by Defendants, however, the Power Plant could not operate;

The reasons for African-Americans being located in large numbers on the north side 
of Flint is due principally to the racial segregation that has been historically practiced by 
White America, poor educational and employment opportunities, political 
disenfranchisement, the numerous social and political forces at work every day to insure 
that minorities are kept in their place and away from mainstream society." Opinion at 35.

5



Defendants’ permit is thus a proximate cause of additional pollution that will adversely 

impact the health of 50,000 African-American and only 3,000 white residents of Flint. See 

Michael Fisher, Environmental Racism Claims Brought Under Title VI o f the Civil Rights Act, 

25 Envtl. L. 285, 294 (Spring 1995) ("The ‘proximate cause’ of a facility’s arrival in a 

community of color can thus accurately be said to be the governmental permitting action"). 

In civil rights cases brought under any of the major federal civil rights statutes (Title VI or 

Title VII of the Civil Rights Act of 1964 and Title VIII of the Fair Housing Act of 1968), 

if a plaintiff proves that a facially neutral practice has a disparate impact, the plaintiff is 

considered to have established a prima facie case — even if the impact also reflects 

conditions traceable to past or present discrimination by others. See, e.g, Griggs v. Duke 

Power Co., 401 U.S. 424 (1971) (employment practice that further and unjustifiably 

disadvantages African Americans, who already have suffered unequal treatment in the 

public education system, is illegal under Title VII).

As set forth below, according to the standards established by federal courts 

interpreting Titles VI and VII of the Civil Rights Act of 1964 or Title VIII of the Fair 

Housing Act, the Court’s finding that race discrimination by others contributed to the 

disproportionate burden of pollution would in no way negate the fact that the disparate 

impact is caused by Defendants’ actions. Defendants’ facially neutral permitting practices 

led to the authorized operation of the Genesee Power Plant, which has both a disparate 

adverse impact upon African Americans and also exacerbates the existing disproportionate 

burden of pollution upon the African-American community in Genesee County. Thus, 

Plaintiffs proved successfully that Defendants’ facially neutral permitting scheme resulted

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in a disparate impact -  a showing sufficient to establish a prima facie case.

A. Disparate Impact Under Title VII of the Civil Rights Act of 1964

Title VII prohibits employment practices that "deprive an individual of employment 

opportunities or otherwise adversely affect his status as an employee because of such 

individuals’s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(2); Civil 

Rights Act of 1991 § 2(2), Pub. L. No. 102-166, 105 Stat. 1071 (1991). In a seminal case 

interpreting Title VII, the Supreme Court held that "[t]he Act proscribes not only overt 

discrimination but also practices that are fair in form, but discriminatory in operation." 

Griggs v. Duke Power Co., 401 U.S. at 431. To establish a violation of Title VII, a plaintiff 

may make a prima facie case of discrimination by showing that the practice in question has 

a disparate effect on a protected class. Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). 

The burden then shifts to the defendant to prove that the practice is necessary to achieve 

legitimate purposes. 42 U.S.C. § 2000e-2(k)(l)(A). If the defendant meets that burden, 

the plaintiff must prove that the purpose is a mere pretext for discrimination or that an 

alternative exists that is less discriminatory. 42 U.S.C. § 2000e-2(k)(l)(A).

To make out a prima facie case under Title VII, a plaintiff must establish that the 

employer s policies, in fact, caused plaintiffs’ class to suffer disparate adverse impact. 42 

U.S.C. § 2000e-2(k)(l)(B)(i); see Ward’s Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). 

The Supreme Court has measured impact by assessing the effect of the challenged practice 

in light of existing conditions facing the protected class -  even if the defendant did not 

cause the existing conditions. In Griggs, for example, the Supreme Court held that 

plaintiffs successfully made out a prima facie case of discrimination by showing that an

7



employment test and requirement of a high school diploma used to assign employees to 

certain positions excluded African Americans at much higher rates than whites. The Court 

did so notwithstanding its attributing differentials in educational attainment to the fact that 

African Americans "have long received an inferior education in segregated schools," a 

condition for which Duke Power Company was not responsible.

Several Supreme Court cases since Griggs have underscored the ways in which 

historical factors and pervasive discrimination contribute to actional disparate impacts. See, 

e.g, Watson v. Ft. Worth Bank & Trust, 487 U.S. 977 (1988); McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 806 (1973). In McDonnell Douglas, the Supreme Court stated, "Griggs 

was rightly concerned that childhood deficiencies in the education and background of 

minority citizens, resulting from forces beyond their control, not be allowed to work a

cumulative and invidious burden on such citizens for the remainder of their lives." 411 U.S. 

at 806.

In this case, Plaintiffs have challenged (1) Defendants’ decision to grant a permit to 

the Power Plant and (2) Defendants’ general environmental permitting practices, which fail 

to consider the existing cumulative burden of pollution or the existing disproportionate 

burden upon African Americans. It is clear that the permit to operate the Power Plant 

resulted in a disparate impact upon African Americans. Opinion at 35. The Court also 

recognized that African Americans are more likely to live in communities overburdened by 

hazardous pollution. Opinion at 34-35. The Court erroneously held, however, that there 

was no prima facie case because African Americans live in communities burdened by 

pollution as a result of "the racial segregation that has been historically practiced by White

8



America, poor educational and employment opportunities for minorities, political 

disenfranchisement, [and] the numerous social and political forces at work every day to 

insure that minorities are kept in their place and away from mainstream society," Opinion 

at 35, not because of Defendants’ permitting practices. However, according to Supreme 

Court Title VII case law, Plaintiffs establish a prima facie case if Defendants’ permitting 

practices have a disparate effect — even if that effect occurs in part as a result of past and 

present discrimination by others. The permit to the Power Plant had a disparate effect. 

Because African Americans are more likely to live in communities that are 

disproportionately burdened by pollution — and because the harm of pollution increases as 

the amount increases — Defendants’ practice of ignoring cumulative effects and the existing 

burden of pollution upon minorities inevitably results in individual permitting decisions’ 

having a racially disparate impact.

B. Disparate Impact Under Title VI of the Civil Rights Act of 1964

The disparate impact standard is also applicable to plaintiffs bringing suit for 

prospective relief to enforce regulations implementing Title VI of the Civil Rights Act.2 

See Guardians Assoc, v. Civil Service Comm’n of New York, 463 U.S. 582, 592-93 (1983).3 

Numerous federal courts adjudicating Title VI disparate impact claims have turned to the 

evidentiary approach developed under Title VII. See, e.g., Jennings v. Alexander, 715 F.2d

2 Title VI provides that "No person in the United States shall, on the ground of race, 
color, or national origin, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under any program or activity receiving Federal financial 
assistance." 42 U.S.C. § 2000d (1988).

Suits brought directly under Title VI — and not its implementing regulations
however, require proof of discriminatory purpose. Alexander v. Choate, 469 U S 287 292- 
94 (1985).

9



1036, 1045 n.9 (6th Cir. 1983) reversed on other grounds by Alexander v. Choate, 469 U.S. 287 

(1985); N.A.A.C.P. v. Medical Center, Inc., 657 F.2d 1322, 1331 (3rd Cir. 1981).

Federal case law in the Sixth Circuit makes clear that, to establish a prima facie 

showing of disparate impact, a plaintiff need only establish that the defendants’ action has 

a differential impact on a protected class. See, e.g., Linton v. Commissioner of Health and 

the Environment, 779 F. Supp. 925 (M.D. Tenn. 1990) aff’d on other grounds 65 F.3d 508 

(6th Cir. 1995); Coalition o f Concerned Citizens Against 1-670 v. Damian, 608 F. Supp. 110, 

127 (S.D. Ohio 1984). The case law also unambiguously provides that a "disparate impact" 

is made out when a facially neutral practice interacts with a pre-existing pattern of

inequality caused by public and private actors’ prior discrimination. Linton, 779 F. Supp. 

at 932.

In Coalition of Concerned Citizens Against 1-670, the court held that the plaintiffs 

challenging the construction of a highway successfully made out a prima facie case because 

the proposed highway would travel through neighborhoods with minority populations 

ranging from 50% to over 90%, and because nearly 75% of the persons who would be 

displaced were racial minorities. Coalition of Concerned Citizens Against 1-670, 608 F. Supp. 

at 127. The simple facts that the highway would travel through the predominantly minority 

community and displace primarily minority residents were held sufficient for a prima facie 

showing -  a conclusion unaffected by whether plaintiffs chose to live in the neighborhood 

or whether defendants had any responsibility for the racial composition of the affected 

neighborhoods.

Similarly, in Linton, the court held that plaintiffs established a prima facie showing

10



of disparate impact. The Linton plaintiffs challenged a Tennessee policy limiting the 

number of beds available to Medicaid recipients in nursing homes, alleging that the policy 

had a disparate impact on racial minorities, in violation of regulations implementing Title 

VI. The court held that as a result of the higher incidence of poverty in the African- 

American population, and the concomitant increased reliance on Medicaid, the limiting 

policy had a disproportionate impact upon African Americans. Linton, 779 F. Supp. at 932. 

Thus, even though the court did not (and presumably could not) hold the State of 

Tennessee and the Commissioner of Health and the Environment responsible for the 

higher poverty rates among African Americans, the court found disparate impact by 

considering the effects of the policy in light of the existing patterns of poverty in Tennessee. 

In its oral opinion in this case, by contrast, the Court failed to measure the effect of 

Defendants’ permitting practices upon African Americans in light of the existing 

disproportionate environmental burdens in Genesee County.

Of course, in Title VI cases, as under Title VII, the civil rights inquiry does not end 

with the plaintiffs’ prima facie case. The burden then shifts to defendants to justify the 

impact by articulating a legitimate nondiscriminatory reason for the challenged practice and 

the necessity for retaining it in its current form. As the court held in Damian, Title VI 

does not per se prohibit locating a facility that will have a differential impact in a minority 

community; it "prohibits taking actions with differential impacts without adequate 

justification." 608 F. Supp. at 127. Here, however, because the Court held incorrectly that 

Plaintiffs did not establish a prima facie showing, Defendants were not required to justify 

their permitting practices, despite the fact that these practices led to issuance of a permit

11



which had a disparate impact upon and increased the already disproportionate burden of 

pollution borne by African Americans in Genesee County.

12



C. Title VIII of the Fair Housing Act

Title VIII of the Fair Housing Act4 has also been interpreted to require only a 

showing of disparate impact to establish a prim a facie case. Thornton v. City of Allegan, 863 

F. Supp. 504, 510 (W.D. Mich. 1993) ("it is sufficient if Plaintiffs prove only that 

Defendant’s action had a discriminatory impact or effect"); see NAACP v. Town of 

Huntington, 844 F.2d 926, 937 (2d Cir.), summarily aff’d, 488 U.S. 15 (1988). Federal courts 

have defined disparate impact in the housing context to include the construction of low- 

income housing in neighborhoods with an already high concentration of low-income 

minority residents because such a practice perpetuates and exacerbates segregation in 

violation of Title VIII. See Alschuler v. Department o f Housing and Urban Development, 686 

F.2d 472, 482 (7th Cir. 1982); Shannon v. United States Department o f Housing and Urban 

Development, 436 F.2d 809, 819 (3rd Cir. 1970); jee also Weathers v. Peters Realty 

Corporation, 499 F.2d 1197, 1202 (6th Cir. 1974). In other words, if an agency fails to take 

into account existing patterns of racial concentration (not caused by the agency) when it 

authorizes new low-income housing and the housing site is in a neighborhood already 

predominantly minority, plaintiffs will establish a prima facie violation of Title VIII. See 

Shannon, 436 F.2d at 821 ("Increase or maintenance of racial concentration is prima facie 

likely to lead to urban blight and is thus prima facie at variance with the national housing 

policy"). Similarly, here, a disproportionate increase of the existing burden of pollution

4 42 U.S.C. § 3604 (b) provides that it shall be unlawful to: "discriminate against any 
person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the 
provision of services or facilities in connection therewith, because of race, color, religion, 
sex, familial status, or national origin."

13



upon African Americans -  and a permitting practice that fails to take into account the 

differential burden upon racial minorities -  is clearly a prima facie showing of disparate 

impact in violation of the Elliot-Larsen Act.

In numerous other housing cases, federal courts have held that a prima facie case 

is made out when a challenged policy has a greater adverse effect on one race than 

another. See Betsey v. Turtle Creek Associates, 736 F.2d 983 (4th Cir. 1984); Metropolitan 

Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977), 

cert, denied 434 U.S. 1025 (1978). Thus, in Betsey, plaintiffs challenging a housing policy 

prohibiting children as tenants, which would have led to the eviction of 74.9% of the non­

white tenants and only 26.4% of the white tenants, were held to have made a prima facie 

showing of disparate impact — even though the defendant apartment complex was not in 

any sense the "cause" of the racial difference in family composition.5 736 F.2d at 988.

The Plaintiffs in this case proved that the granting of the permit to the Power Plant 

had a greater adverse impact on African Americans than whites -  affecting 50,000 African 

Americans and only 3,000 whites and that African Americans already bear a 

disproportionate burden from pollution in Genesee County. Thus, the Defendants’ 

decisions to ignore demographic information about race and to grant yet another permit 

clearly caused a disparate impact based on race.

Betsey was decided before Title VIII of the Fair Housing Act was amended in 1988, 
so as to prohibit familial status discrimination. See H.R. Rep. No. 100-711, at 16 (1988), 
reprinted in 1988 U.S.C.C.A.N. 2173 (noting that restrictions on families with children 
disproportionately burden minority families and increase racial segregation).

14



CONCLUSION

For the foregoing reasons, amicus curiae respectfully urges this Court to alter and 

amend its decision of May 29, 1997 holding that Plaintiffs failed to establish a prima facie 

case of disparate impact under the Elliot-Larsen Act.

Respectfully Submitted,

ELAINE R. JONES 
Director-Counsel

NORMAN J. CHACHKJN

RACHEL D. GODSIL 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC.

15



STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR GENESEE COUNTY

NAACP-Flint Chapter, Janice O’Neal,
Lilian Robinson, Flint-Genesee Neighborhood 
Coalition (United for Action),

Plaintiffs,

Honorable Archie Hayman
-v' No. 95-38228-CV

John Engler, Governor; Michigan Depart­
ment of Environmental Quality; Russell Harding 
Director.

Defendants.

For Plaintiffs: For Amicus Curiae:

Kary L. Moss, Esq. Elaine R. Jones
William Lienhard, Esq. Director-Counsel
NLG/Sugar Law Center Norman J. Chachkin
645 Griswold Suite 1800 David T. Goldberg
Detroit, Michigan 48226 Rachel D. Godsil

Alice Jennings, Esq.
NAACP Legal Defense and 
Educational Fund, Inc.

Edwards & Jennings 99 Hudson Street, Suite 1600
407 E. Fort Street, Suite 605 New York, New York 10013
Detroit, Michigan 48226

Michael J. Haddad, Esq.
Goodman, Eden Millender & Bedrosian

For Defendants: 

Todd B. Adams
P.O. Box 30028 Paul F. Novak
3000 Cadillac Tower Assistant Attorney General
Detroit, Michigan 48226 Natural Resources Division

Thomas Stephens
8th Floor, Mason Bldg. 
530 W. Allegan

1394 E. Jefferson P.O. Box 30028
Detroit, Michigan 48207 Lansing, MI 48193

PROOF OF SERVICE



PROOF OF SERVICE

Rachel D. Godsil, being first duly sworn, deposes and says that on June 26, 1997, 

by overnight mail, she served Brief of Amicus Curiae NAACP Legal Defense and 

Educational Fund. Inc, on:

Counsel for Defendants

Todd B. Adams
Paul F. Novak
Assistant Attorney General
Natural Resources Division
530 West Allegan
P.O. Box 30028
Lansing, Michigan 48909

Counsel for Plaintiffs

Karry Moss 
Bill Lienhard
Maurice and Jane Sugar Law Center 
for Economic and Social Justice 
645 Griswold Street 
Detroit, MI 48226

Rachel D. Godsil, Esq.
NAACP Legal Defense and 
Eductional Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013

DATED: June 26, 1997
New York, New York

N otary  Public

EVELYN ANDERSON 
Notary Public, State of New York

No. 01AN5052182 
Qualified in New York County 

Commission Expires November 20,1997