# Morton M. Hill, Jr. v. Norfolk and Western Railway Company > Court of Appeals for the Seventh Circuit · May 13, 1987 · 814 F.2d 1192 URL: https://www.frixlaw.com/law-library/cases/9475974 ## Case - **Full name:** Morton M. HILL, Jr., Plaintiff-Appellant, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** May 13, 1987 - **Citations:** 814 F.2d 1192 - **Precedential status:** Published - **Opinion:** Concurring in part by Parsons - **Judges:** Posner, Easterbrook, Parsons - **Cited by:** 291 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475974 ## How later opinions describe it (automated extraction) - stating the question “is not whether the arbitrator or arbitrators erred in interpreting the contract; it is not whether they clearly erred in interpreting the contract; it is not whether they grossly erred in interpreting the contract; it is whether they interpreted the contr… - holding sanctions may be imposed where most of the appellant’s Nos. 18-1866 & 18-1889 19 arguments are frivolous, even if not all of them can be classi- fied that way - holding sanctions may be imposed where most of the appellant's arguments are frivolous, even if not all of them can be classified that way - stating that this “ostrich-like tactic” is “as unpro- fessional as it is pointless” ## Opinion text PARSONS, Senior District Judge, concurring in part and dissenting in part. I assent to the majority opinion that under the narrow standard of review to be applied in these cases, the decision of the Public Law Board should not be set aside. The Board’s construction of the word “conviction” is not so gross an apparent misinterpretation of the contract as to compel the conclusion that it was not interpreting the contract at all. However, I cannot agree with the majority that Hill’s appeal was frivolous and that it was so “ ‘vexatious’ per se” that it deserves a sua sponte award of sanctions against his attorney without notice to him and without affording him an opportunity to be heard. To this extent, I dissent. The unmonitored act of assessing sanctions against a lawyer can too easily beget emotion. It is a common human tendency to find self assurance in anger when punishing, and that drive for self assurance itself tends to enhance the level of the punishment. In the performance of the judicial function, a court like any other person in authority too easily can lose sight of its otherwise dispassionate review of the facts and the law when it considers without a prior exchange of reasoning an assessment of sanctions. “A judge awarding sanctions is often advocating the correctness of his decision and is likely to do so convincingly____ [A court in an] opinion ‘has the power to make an attorney’s argument seem frivolous.’ ” Nelken, Sanctions Under Rule 11 — Some “Chilling” Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313 , 1339-40 & n. 172 (1986) (citation omitted); see also Weinstein v. University of Illinois, 811 F.2d at 1099 (7th Cir.1987) (Cudahy, J., dissenting from sua sponte award of sanctions). This tendency can become compelling when the court, in the absence of a request by a party and on its own motion, determines to assess sanctions. In my view, neither the majority’s analysis nor its citation of Dickerson v. New Banner Institute, Inc., 460 U.S. 103 , 103 S.Ct. 986 , 74 L.Ed.2d 845 (1983) establishes beyond sincere and reasonable debate that *1204 Hill has been “convicted” within the meaning of the collective bargaining agreement. The bare majority of the Supreme Court in Dickerson construed the term “conviction” to mean under the circumstances of that case what it has been defined to mean here; but that was done for purposes particularly especial in Dickerson to the federal gun control laws, because “Congress sought to rule broadly — to keep guns out of the hands of those who have demonstrated that ‘they may not be trusted to possess a firearm without becoming a threat to society.’ ” Id. at 112 , 103 S.Ct. at 991 (quoting Lewis v. United States, 445 U.S. 55, 63 , 100 S.Ct. 915, 920 , 63 L.Ed.2d 198 (1980)). I think that the teaching of Justices Rehnquist, Brennan, Stevens and O’Connor in their dissent in Dickerson would have been acknowledged by the majority as reciting the universally recognized role of the incident of a “conviction” in the field of criminal law, and that the majority ruling in that case was a special exception. The words of the dissent are compelling and ordered: Thus, at the most, Congress has required the entry of a formal judgment as the signpost of a “conviction.” At the least, Congress has required the acceptance of a plea____ The [majority] concludes that in this case “we ... have more [than a mere guilty plea],” because the state trial judge “noted” the plea and placed Kennison on probation. I cannot agree____ ... Whatever a trial court does when it “notes” a plea, it is less, instead of more, than an acceptance of the plea which is preceded by an examination of the defendant to insure that the plea is voluntary. Where the Iowa deferred judgment statute can be used, “ ‘[t]he trial court may, upon a plea of guilty [and] [w]ith the consent of the defendant ... defer judgment and place the defendant on probation.’ ” Congress has never before considered such circumstances sufficient for a finding of a “conviction”; there is nothing in the Gun Control Act to infer that Congress has adopted such a standard now. It is likely that at the most Congress intended that a “conviction” be represented by a formal entry of judgment, or at least an acceptance of a guilty plea. But in either case, such criteria are absent where, following a guilty plea, the Iowa deferred judgment statute is invoked. 460 U.S. at 123-24 , 103 S.Ct. at 997 (Rehnquist, J., dissenting) (quoting Iowa Code sec. 789A.1 (1977)) (emphasis in original; emphasis added). The majority in Dickerson observed that: the terms “convicted” or “conviction” do not have the same meaning in every federal statute. In some statutes those terms specifically are made to apply to one whose guilty plea has been accepted whether or not a final judgment has been entered. See, e.g., 15 U.S.C. sections 80a-2(10) and 80(b)-2(6). In other federal statutes, however, the term “convict ed” is clearly limited to persons against whom a formal judgment has been entered. See, e.g., 18 U.S.C. section 4251 (e) and 28 U.S.C. section 2901 (f). Id. at 112 n. 6, 103 S.Ct. at 991 n. 6. And even the majority in Dickerson implicitly acknowledged that it was departing from the usual definition of “conviction.” It partially justified this by the particular concerns of Congress relating to federal gun control laws. Id. at 113 n. 7, 103 S.Ct. at 992 n. 7 (distinguishing Lott v. United States, 367 U.S. 421, 427 , 81 S.Ct. 1563, 1567 , 6 L.Ed.2d 940 (1961)). An arbitrator is not necessarily confined in his definition of a term in a collective bargaining agreement to the definition given it by the Supreme Court or any other court. However, no authority gives him the power to define terms boundlessly, for if it did, then his power to interpret the collective bargaining agreement would know no limit. An arbitrator could implement the agreement with his own private notions of what is right and what is wrong by the simple guise of concluding that, as in this case, a plea of guilty means “conviction.” It follows easily from decisions in this Circuit that if an arbitrator assigns a meaning to a term in the agreement that it cannot bear, then the arbitrator has failed *1205 to interpret the agreement, and his interpretation is “wholly baseless and without reason.” See, e.g., Kotakis v. Elgin, Joliet & Eastern Railway Co., 520 F.2d 570, 574 (7th Cir.1975). Lott v. United States provides the platform for Hill’s making a non-frivolous argument here. In Lott , the Court held that because “[a]t any time before a sentence is imposed — i.e., before the pronouncement of judgment — the plea may be withdrawn, with the consent of the court ... it is the judgment of the court — not the plea — that constitutes the ‘determination of guilt’____ [W]e have not been cited to any case, and have found none, that holds or even intimates to the contrary.” 367 U.S. at 426-27 , 81 S.Ct. at 1567 . It is plain that under the Indiana statute that authorized what happened to Hill, he was not “convicted” within the meaning of Lott . Hill’s lawyer justifiably could have believed that Indiana law should have been dispositive of this issue, and he asks us to look to the Indiana statute under which Hill’s case was handled. Ind.Code 35-48-4-12 provides: Sec. 12. If a person who has no prior conviction of an offense under this article or under a law of another jurisdiction relating to controlled substances pleads guilty to possession of marijuana or hashish as a Class A misdemeanor, the court, without entering a judgment of conviction and with the consent of the person, may defer further proceedings and place him in the custody of the court under such conditions as the court determines. Upon violation of a condition of the custody, the court may enter a judgment of conviction. However, if the person fulfills the conditions of the custody, the court shall dismiss the charges against him. There may be only one (1) dismissal under this section with respect to a person. (Emphasis added.) Hill’s pleading guilty and being accepted into the custody of the court under this statute, as differing from being remanded into the custody of the executive branch, was not the equivalent of his being criminally punished, although it is not unusual for people on probation to consider themselves being punished. Courts authorize punishment; they do not administer it. Here, the essential characteristic of the probation was antithetical to punishment. Conceptually, probation here was a character-testing program to provide an opportunity to avoid punishment. A judgment of conviction was never entered in Hill’s case. Eight days before the railroad's investigation was begun, the state’s charges against Hill were dismissed, and his official record remained free of any conviction. Hill’s attorney summarized accurately the critical facts of this case in his argument before the court below as, in eloquent sincerity, he did in his final brief before us when he said: [Hills’ former attorney] in advising his client ... told him that if he accepted the plea bargain as [proffered] he would not have a conviction on his record and that the charges against him would be, in due course, dismissed____ It is an outrage against our language to allow the word “conviction” to mean anything and everything that an arbitrator might ... choose to define it to mean. In this case, the word “conviction” has been extended to mean a plea bargain under the provisions of [Ind.Code sec.] 35-48-4-12____ [T]he Miami [Indiana] Circuit Court specifically held, in its entry of November 3, 1983, that it “does not enter a judgment of conviction but the Court shall defer further proceedings ____” This entry was then followed by a dismissal of all charges on January 19, 1984. The contractual provision which was used [by the railroad] to justify the discharge of Morton M. Hill required that he be “convicted”____ The undisputed evidence is that Mr. Hill was not convicted, but that ... the charges against him were dismissed. The Public Law Board has no right or jurisdiction to ignore the law ... or the facts ... in order to reach a result, to its liking. If a Public Law Board, or any other judicial entity, can redefine words having legal significance to mean something quite dif *1206 ferent from their customary fix then we lawyers, and all whom we advise, are set adrift. If the plain meaning of words can be ignored under the guise of interpretation then no contract agreement or understanding can ever be settled____ (Emphasis added.) In view of this, the argument that the Board failed to interpret the contract is at least reasonable. I would find that the appeal of his case was not frivolous, was not an undue burden upon the appellee, and was not a waste of the court’s time. Finally, even were I to consider the appeal to have been frivolous, I would not impose sanctions without first having allowed Hill’s attorney an opportunity to respond. The rules allowing sanctions should be strictly construed. Hagerty v. Succession of Clement, 749 F.2d 217, 222 (5th Cir.1984) (construing section 1927) (citing Monk v. Roadway Express, Inc., 599 F.2d 1378, 1382 (5th Cir.1979), aff'd in relevant part sub nom. Roadway Express, Inc. v. Piper, 447 U.S. 752 , 100 S.Ct. 2455 , 65 L.Ed.2d 488 (1980). Cf. Liparota v. United States, 471 U.S. 419, 426-27 , 105 S.Ct. 2084, 2088-89 , 85 L.Ed.2d 434 (1985); United States v. Bass, 404 U.S. 336, 348 , 92 S.Ct. 515, 522 , 30 L.Ed.2d 488 (1971). The Supreme Court in Roadway Express did not limit the requirement of notice and opportunity to be heard to 28 U.S.C. sec. 1927 . It stated broadly that “[l]ike other sanctions, attorney’s fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record.” Id. at 767, 100 S.Ct. at 2464 (emphasis added). The context in which this statement was made concerned a court’s inherent power to assess sanctions against attorneys who deliberately abuse judicial processes. Id. at 766, 100 S.Ct. at 2464. The right to notice and an opportunity to be heard before sanctions are assessed, recognized in Roadway Express, was neither limited to section 1927 nor implicitly qualified. It applies to 28 U.S.C. sections 1912 and 1927, Fed.R.App.P. 38 and 46(c), and Fed.R.Civ.P. 11. Fed.R.App.P. 38 and 28 U.S.C. sec. 1912 both concern frivolous appeals and speak of the taxing of damages for delay. It is true that the ultimate determination of whether or not an appeal is frivolous or there has been undue delay rests with the court itself, but I think it is injudicious to make this factual determination without first allowing the attorney an opportunity to explain why in his or her view the appeal was not frivolous or the delay was not undue. No one on the bench is infallible. Without first permitting an opportunity to be heard, an assessed sanction necessarily appears to be based on caprice or emotion, and not on a monitored exercise of judicial discretion. The sua sponte assessment of sanctions “is bound to be a capricious business____” Weinstein, at 1099 (Cudahy, J. dissenting). Of the other two provisions empowering an appellate court to award sanctions, Fed. R.App.P. 46(c) explicitly calls for notice and an opportunity to respond, and 28 U.S.C. sec. 1927 implicitly presupposes it. And the legislative history of the 1980 amendments to section 1927, which enlarged its original reach to permit a court to impose sanctions directly on the attorney himself, makes clear that notice and an opportunity to respond are required: The high standard which must be met to trigger 1927 insures that the provision in no way will dampen the legitimate zeal of an attorney in representing his client____ The purpose in deterring delay would be more effectively achieved if judges warn attorneys in anticipation of a violation of section 1927 rather than simply waiting for violations to occur and imposing the sanctions provided. However, the managers decided not to require a warning as a matter of law because a violation might not necessarily be committed in the presence of the judge and because such a requirement might be viewed as license to engage in dilatory conduct until such warning is given____ The managers intend that judges applying section 1927 will safeguard the rights of an attorney who may be held in violation of the section. Before sanctioning an attorney under section 1927, the court is to afford the attorney all *1207 appropriate protections of due process available under the law. House Conf.Rep. No. 96-1234, 96th Cong., 2nd Sess. 8, reprinted in 1980 U.S.Code Cong. & Admin.News 2716, 2782-83 (emphasis added). Finally, it is established in the cases of this Circuit that a court may decline to award sanctions where it is assured that the misconduct at issue will not be repeated. See, e.g., In re Kelly, 808 F.2d 549, 552 (7th Cir.1986). If a decimation to impose sanctions may be premised on such an assurance (a factual issue), similar considerations ought to be available to every attorney or litigant on whom an imposition of sanctions is at issue. Congress has not “extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 260 , 95 S.Ct. 1612, 1623 , 44 L.Ed.2d 141 (1975). The consistent body of cases from the Supreme Court and the circuits that have spoken on this matter underscores the principle that sanctions should not be awarded sua sponte with neither notice nor an opportunity to be heard. Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 227 (7th Cir. 1984) (“[A] court should provide counsel with some opportunity to be heard.”); see also Lepucki v. Van Wormer, 765 F.2d 86, 88 (7th Cir.1985) (per curiam) (attorney who had notice that sanctions under Rule 11 might be assessed, but who nevertheless failed to appear at the sanctions hearing, was not entitled to additional process); Eash v. Riggins Trucking, Inc., 757 F.2d 557, 570 (3rd Cir.1985) (en banc) (“Courts of appeals may not impose disciplinary sanctions on attorneys until ‘after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested.’ ”) (citations omitted); Hagerty, 749 F.2d at 223 (since appellees moved for sanctions on appeal, the assumption is that appellant, having notice of the motion, was permitted to respond before it was allowed; even then, it was remanded to the district court for a determination of amount); Federal Trade Commission v. Alaska Land Leasing, Inc., 799 F.2d 507, 510 (9th Cir. 1986) (“Due process requires that parties subject to sanctions have ‘sufficient opportunity to demonstrate that their conduct was not undertaken recklessly or willfully.’ ”) (quoting Toombs v. Leone, 777 F.2d 465, 472 (9th Cir.1985)); Miranda v. Southern Pacific Transportation Co., 710 F.2d 516, 522 (9th Cir.1983); United States v. Blodgett, 709 F.2d 608, 610 (9th Cir.1983) (district court’s award of sanctions under section 1927 against an attorney for filing a frivolous interlocutory appeal reversed because the attorney had not been given an opportunity to be heard); Charczuk v. Commissioner of Internal Revenue, 771 F.2d 471 , 476 & n. 4 (10th Cir.1985) (due process requires court to afford “all appropriate protections of due process” to attorney whose conduct was “paradigm of unreasonable behavior”) (quoting House Conf.Rep. No. 96-1234, supra, at 2783). Rule 38 and section 1927, like other publicly-announced penalties for misconduct, provide general notice that sanctions can be assessed for infractions of rules including our rules against frivolous arguments made by counsel. But there is to be drawn a distinction between the general notice about sanctions and notice that sanctions are being considered. Traditional procedural steps should always be taken before an assessment of a penalty is made. And even if the approach to sanctions being followed were permissible, it is, I believe, ill-advised. Strong judicial management is a potential threat to the adversary system as it has existed for hundreds of years because it calls for a significant change in the power relationship between judges and lawyers and in their respective functions. Indeed, there are risks in imposing a meaningful duty on attorneys to act in the interests of the judicial system, rather than exclusively in that of their clients, and in placing enforcement of that duty in the hands of judges, whose primary concern could well become efficiency rather than justice itself. *1208 Miller, The Adversary System: Dinosaur or Phoenix?, 69 Minn.L.Rev. 1, 34-35 (1984). The better policy in all such determinations is to not predispose the issue by concluding that a hearing would not be helpful. The need to deter frivolous litigation should never be considered demanding enough to cause us judges to weaken those structures of fundamental fairness upon which our judicial system rests. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475974. Public record. Not legal advice.