Friday, June 22, 2012

Southern Union Co. v. United States

Jun 21: In the U.S. Supreme Court, Case No. 11-94. Appealed from the U.S. Court of Appeals, First Circuit [See WIMS 1/4/11]. Justices Sotomayor, Roberts, Scalia, Thomas, Ginsburg and Kagan were in the majority. Justice Breyer filed a dissenting opinion in which Kennedy and Alito joined. The case raises the important question of whether a criminal fine must be vacated under Apprendi v. New Jersey, 530 U.S. 466 (2000), where a judge, and not a jury, determined the facts as to the number of days of violation under a schedule of fines.
    In summary, the majority says, "The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence. Apprendi v. New Jersey, 530 U. S. 466 (2000); Blakely v. Washington, 542 U. S. 296 (2004). We have applied this principle in numerous cases where the sentence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does."
    In this case, Petitioner Southern Union Company is a natural gas distributor. Its subsidiary stored liquid mercury, a hazardous substance, at a facility in Pawtucket, Rhode Island. In September 2004, youths from a nearby apartment complex broke into the facility, played with the mercury, and spread it around the facility and complex. The complex's residents were temporarily displaced during the cleanup and most underwent testing for mercury poisoning.
    Violations of the RCRA are punishable by, inter alia, "a fine of not more than $50,000 for each day of violation." §6928(d). At sentencing, the probation office set a maximum fine of $38.1 million, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004. Southern Union objected that this calculation violated Apprendi because the jury was not asked to determine the precise duration of the violation. The company noted that the verdict form listed only the violation's approximate start date (i.e., "on or about"), and argued that the court's instructions permitted conviction if the jury found even a 1-day violation. Therefore, Southern Union maintained, the only violation the jury necessarily found was for one day, and imposing any fine greater than the single-day penalty of $50,000 would require fact-finding by the court, in contravention of Apprendi.
    The Government acknowledged the jury was not asked to specify the duration of the violation, but argued that Apprendi does not apply to criminal fines. The District Court disagreed and held that Apprendi applies. But the court concluded from the "content and context of the verdict all together" that the jury found a 762-day violation.

    The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a "community service obligatio[n]" of $12 million. On appeal, the United States Court of Appeals for the First Circuit rejected the District Court's conclusion that the jury necessarily found a violation of 762 days. But the Court of Appeals affirmed the sentence because it also held, again in contrast to the District Court, that Apprendi does not apply to criminal fines. Other Circuits have reached the opposite conclusion. The majority Supreme Court said, "We granted certiorari to resolve the conflict. . . and now reverse. . . We hold that the rule of Apprendi applies to the imposition of criminal fines. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

    The High Court explains, "Under Apprendi, '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' 530 U. S., at 490. The 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Blakely, 542 U. S., at 303 (emphasis deleted). Thus, while judges may exercise discretion in sentencing, they may not 'inflict[to] punishment that the jury's verdict alone does not allow.'"

    The dissenting opinion indicates, "Where a criminal fine is at issue, I believe the Sixth Amendment permits a sentencing judge to determine sentencing facts -- facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose. Those who framed the Bill of Rights understood that 'the finding of a particular fact' of this kind was ordinarily a matter for a judge and not necessarily 'within "the domain of the jury."' Oregon v. Ice, 555 U. S. 160, 168 (2009) (quoting Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion)). The Court's contrary conclusion, I believe, is a historical and will lead to increased problems of unfairness in the administration of our criminal justice system."

    Access the complete opinion and dissent (click here). Access the Supreme Court docket (click here). Access the oral argument transcript (click here). Access the briefs filed in the case (click here). [#Haz, #Remed, #SupCt]

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The Save The Peaks Coalition v. U.S. Forest Service

Jun 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17896. On Appeal from the United States District Court for the District of Arizona [See WIMS 2/10/12]. The Appeals Court explains that Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney's
fees and costs. The court is well aware that Plaintiffs-Appellants and Howard M. Shanker (Shanker), their counsel, "grossly abused the judicial process in prosecuting this second case. However, a majority of the panel has concluded that an award of attorney fees would be inequitable because Plaintiffs-Appellants appear to have been misled by their counsel concerning the issues that remained part of the appeal, and Shanker was acting in a pro bono capacity. Nevertheless, the panel unanimously concludes that some sanction against Shanker personally is appropriate."
    The Appeals Court indicates, ". . .we find that Shanker's conduct merits sanctions against him personally. As detailed in Save the Peaks Coalition v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012), Shanker grossly abused the judicial process in bringing this case solely 'to ensure further delay and forestall development' at Snowbowl. Save the Peaks Coal., 669 F.3d at 1028. Shanker acted with subjective bad faith. He engaged in tactics with the intent of increasing expenses and delaying development at Snowbowl, unreasonably multiplying proceedings after losing in Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc). His intent was to harass Snowbowl. Therefore, we conclude that Shanker is subject to sanctions under § 1927. See B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1107 (9th Cir. 2002); New Alaska Dev. Corp., 869 F.2d at 1306."
    The Appeals Court says, "As an appropriate remedy, we hold Shanker 'personally liable for excessive costs for unreasonably multiplying proceedings.' Gadda, 377 F.3d at 943 n.4. Because this entire case was designed to harass Snowbowl, we conclude that Snowbowl is entitled to an award of all costs other than attorney's fees that it incurred in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896.) We hereby award these costs to Snowbowl against Shanker personally. The case is hereby referred to the Appellate Commissioner to determine the monetary amount of costs to award in Snowbowl's favor against Shanker. Therefore, the court awards costs in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896) to Snowbowl, to be paid entirely by Shanker, counsel for Plaintiffs-Appellants. Thus, Snowbowl's Motion for Attorneys' Fees is denied, and its accompanying motion for costs is granted, as modified by this order."
    Access the complete order (click here). [#Land, #CA9]
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