Respondents Brief — Daniel James Altstatt, Petitioner v. City of Sacramento, California

No. 22-468

IN THE

Supreme Court of the United States

_________

DANIEL JAMES ALTSTATT,

Petitioner,

v.

CITY OF SACRAMENTO,

Respondent.

_________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF CALIFORNIA

_________

BRIEF IN OPPOSITION

_________

OFFICE OF THE SACRAMENTO

CITY ATTORNEY

SUSANA ALCALA WOOD

City Attorney

915 I Street, Room 4010

Sacramento, CA 95814-2608

Telephone: (916) 808-5346

mruyak@cityofsacramento.org

MATTHEW D. RUYAK*

Assistant City

Attorney

ANGEL A. SOLIS

Deputy City Attorney

Counsel for Respondent

*Counsel of Record

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................

ii

INTRODUCTION .............................................

1

STATEMENT OF THE CASE ..........................

2

REASONS TO DENY THE PETITION ...........

4

A. This Court has Already Firmly Established the Gross Disproportionality

Standard and the Guideposts for Applying It. ............................................................

5

B. State and Federal Courts Apply Bajakajian Consistently. ..................................

8

C. The Decision of the California Court of

Appeal is not in Conflict with the Excessive Fines Clause. ........................................

17

CONCLUSION ..................................................

20

ii

TABLE OF AUTHORITIES

Page

Cases

Austin v. United States,

509 U.S. 602 (1993)..............................................10

City & Cnty. of San Francisco v. Sainez,

92 Cal. Rptr.2d 431. (Cal. App. 1st

Dist. 2000) ............................................................18

City of Nassau v. Canavan,

802 N.E.2d 616 (N.Y. 2003) ...........................12, 17

Commonwealth v. Real Prop. &

Improvements Commonly Known As

5444 Spruce St., Phila., 832 A.2d 96

Pa. 2003)...............................................................13

Cooper Indus. v. Leatherman Tool

Group, Inc.,

532 U.S. 424 (2001)................................................4

In re Daniel James Altstatt,

No. 19-23422-B-13J ...............................................3

De Weese v. Palm Beach,

812 F.2d 1365 (11th Cir. 1987)..............................5

Howell v. State,

656 S.E.2d 511 (Ga. 2008) ...................................11

Hudson v. United States,

522 U.S. 93 (1997)..................................................5

iii

TABLE OF AUTHORITIES—Continued

Page

Maher v. Ret. Bd. of Quincy,

895 N.E.2d 1284 (Mass. 2008).............................12

Murray v. Ford Motor Co.,

770 F.2d 461 (5th Cir. 1985)..................................3

Newell Recycling Co. v. E.P.A.,

231 F.3d 204 (5th Cir. 2000)........................8, 9, 15

People ex rel. Hartrich v. 2010 HarleyDavidson,

104 N.E.3d 1179 (Ill. 2018)..................................11

People ex rel. Lockyer v. R.J. Reynolds

Tobacco Co.,

124 P.3d 408 (Cal. 2005) .......................... 10, 11, 17

Singh v. City of Oakland,

295 Fed. Appx. 118 (9th Cir. 2008) .......................5

State v. Real Prop. at 633 E. 640 N.,

Orem, Utah,

994 P.2d 1254 (Utah 2000) ..................................13

Timbs v. Indiana,

139 S. Ct. 682 (2019)....................................5, 9, 10

Towers v. City of Chicago,

173 F.3d 619 (7th Cir. 1999)..................................5

United States v. $132,245.00 in U.S.

Currency,

764 F.3d 1055 (9th Cir. 2014)..............................16

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. 817 N.E. 29th Drive

Wilton Manors, Fla., 175 F.3d 1304,

1309 (11th Cir. 1999) ............................................9

United States v. Aleff,

772 F.3d 508 (8th Cir. 2014)..........................15, 17

United States v. Bajakajian,

524 U.S. 321 (1998).......................................... 5-18

United States v. Ely, 468 F.3d 399, 403

(6th Cir. 2006)) ....................................................15

United States v. Heldeman,

402 F.3d 220 (1st Cir. 2005) ................................13

United States v. Hines,

88 F.3d 661 (8th Cir. 1996)..................................18

United States v. Jalaram, Inc.,

599 F.3d 347 (4th Cir. 2010)................................14

United States v. Malewicka,

664 F.3d 1099 (7th Cir. 2011)..............................15

United States v. Mitchell,

405 F.Supp.2d 602 (D. Md. 2005) ..........................4

United States v. Seher,

562 F.3d 1344 (11th Cir. 2009)............................16

United States v. Varrone,

554 F.3d 327 (2nd Cir. 2014) ................................15

v

TABLE OF AUTHORITIES—Continued

Page

United States v. Viloski,

814 F.3d 104 (2d Cir. 2016) ...........................14, 15

United States v. Wagoner Cty. Real

Estate,

278 F.3d 1091 (10th Cir. 2002)............................16

United States v. Weast,

811 F.3d 743(5th Cir. 2016)...................................4

United States v. Zakharia,

418 F. App’x at 422 ............................................15

United States v. Young,

618 F. App’x 96 (3d Cir. 2015) .............................14

Wilson v. Comm’r of Revenue,

656 N.W.2d 547 (Minn. 2003)..............................12

Constitutional Provisions

U.S. Const. Amend. VIII ......................... 4, 5, 8, 15, 19

U.S. Const. Amend. XIV .............................................4

Federal Statutes

11 U.S.C. § 362(a)........................................................3

28 U.S.C. 1441(d) ....................................................2, 3

28 U.S.C. 1446(d) ........................................................3

vi

TABLE OF AUTHORITIES—Continued

Page

State Statutes

Tucson, Ariz., Code of Ordinances § 1648 ..........................................................................19

San Jose, Cal., Code of Ordinances §

1.08.015 ................................................................19

Sacramento, Cal., City Code §§

8.04.080(B) ............................................................1

8.100.170(A) ...........................................................1

Boston, Mass., Municipal Code § 1657.6 .......................................................................19

Huston, Tex., Code of Ordinanaces §§

10-451(d) ..............................................................19

10-458 ...................................................................19

1

INTRODUCTION

Daniel J. Altstatt owns real property located at 4432

H Street, Sacramento, California. Since June 4, 2014,

the City of Sacramento’s (the “City’s”) Community Development Department has had a pending code compliance case, due to the condition of the property. Between June 4, 2014, and December 12, 2017, the City

received numerous complaints from Mr. Altstatt’s

neighbors regarding his property, a next-door neighbor describing it as a harborage for rats. Despite the

City’s extensive enforcement efforts, Mr. Altstatt

maintained his property as a public nuisance for more

than three years. On March 11, 2020, the trial court

entered judgment against Mr. Altstatt. 1 The judgment included a permanent injunction against Mr.

Altstatt and ordered him to pay two civil penalties,

each in the amount of $250 per day, commencing on

November 2, 2014, and continuing through December

12, 2017. 2

Mr. Altstatt now seeks review of the California

Court of Appeal’s decision affirming the trial court’s

1 Mr. Altstatt misattributes the delay in requesting a default

judgment to the City. Pet. 6. His own actions and frivolous filings

caused the delay. Clerk’s Tr. 00137.

2 It is erroneous to assert that the City sought “to run up its

penalties and force a sale” of Mr. Altstatt’s property. Pet. 6. Under the Sacramento City Code, any person who maintains a public nuisance or hazardous or unsanitary premises is subject to a

civil action to abate or enjoin the nuisance or condition and is

liable for civil penalties for each day the violations continue. Sacramento, Cal., City Code §§ 8.04.080(B), 8.100.170(A). As Mr.

Altstatt did not remedy the violations for more than three years,

the trial court awarded civil penalties accordingly. Pet. App. 2.

2

default judgment. Because there is no dispute that

the Excessive Fines Clause applies to the states nor

any conflict between the Excessive Fines Clause and

the California Court of Appeal’s decision, there is no

good reason for this Court to grant certiorari.

STATEMENT OF THE CASE

On September 30, 2014, the City issued Mr. Altstatt

a “Notice and Order to Clean, Remove, Repair and/or

Cease a Public Nuisance.” Pet. App. 38-42. Mr. Altstatt did not appeal that notice and order. 3

Almost a year later, and after extensive enforcement efforts, the City filed a complaint against Mr.

Altstatt seeking an injunction, abatement of the public nuisance, and civil penalties. Pet. App. 19-35. The

City’s complaint alleged causes of action for public

nuisance, substandard housing, and blight. Pet. App.

26-30. Rather than respond to the complaint or remedy the public nuisance, Mr. Altstatt elected to delay

the City’s action by twice frivolously removing the action to the United States District Court, Eastern District of California, under 28 U.S.C. 1441(d). 4 Mr. Altstatt’s first attempt to remove was on October 14,

2016. 5 Clerk’s Tr. 00109. The district court issued an

3 Mr. Altstatt contends that “he disputed the assertions and

characterization” of the notice and order. Pet. 5. However, Mr.

Altstatt never filed an appeal. Clerk’s Tr. 00602.

4 In his notice of removal for City of Sacramento v. Altstatt,

No. 2:16-cv-02449, Mr. Altstatt argued that 28 U.S.C. 1441(d)

was applicable because he is a “foreign state.”

5 Filing a notice of removal in the trial court divests the state

trial court of jurisdiction until such time as the case is remanded

3

order remanding the case on January 19, 2017. Mr.

Altstatt appealed that order on February 8, 2017. On

May 16, 2017, the Ninth Circuit summarily affirmed

the district court’s remand order. 6 Mr. Altstatt’s second attempt to remove was on February 13, 2018. 7

Clerk’s Tr. 00110. On January 2, 2019, the district

court, once again, remanded back to the trial court.

Thereafter, to further delay the City’s action, on May

30, 2019, Mr. Altstatt improperly filed an automatic

stay in the trial court based on Mr. Altstatt’s bankruptcy proceeding in the United States Bankruptcy

Court for the Eastern District of California, In re Daniel James Altstatt, No. 19-23422-B-13J. 8 Ultimately,

the Bankruptcy Court terminated the automatic stay

on September 5, 2019. Clerk’s Tr. 00111.

Although Mr. Altstatt repeatedly attempted to delay the City’s action, he never filed an answer in the

trial court; instead, he filed nonsensical challenges to

by the federal court. See 28 U.S.C. 1446(d); see also Murray v.

Ford Motor Co., 770 F.2d 461, 463 (5th Cir. 1985).

6 In the two-sentence order the Ninth Circuit found that “the

questions raised in this appeal are so insubstantial as not to require further argument” and affirmed the remand order of the

district court. City of Sacramento v. Altstatt, No. 17-15232.

7 In his notice of removal for City of Sacramento v. Altstatt,

No. 2:17-cv-02029, Mr. Altstatt again argued that 28 U.S.C.

1441(d) was applicable because he is a “foreign state.”

8 11 U.S.C. § 362(a) dictates that an automatic stay arises

once a bankruptcy case is filed and prevents any actions in connection with their petition claims against the debtor, property of

the debtor, or property of the estate.

4

the government’s jurisdiction. 9 For example, he contended that neither the laws of United States of

America nor the State of California, or a political subdivision thereof, apply to him. 10 Clerk’s Tr. 00276-77.

Accordingly, the trial court entered Mr. Altstatt’s default on February 1, 2018, and issued a default judgment in favor of the City on March 11, 2020. Clerk’s

Tr. 00110, 00210, 00622-24.

REASONS TO DENY THE PETITION

There is no question what the Eighth Amendment

to the U.S. Constitution provides: “Excessive bail

shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” (U.S.

Const. amend. VIII.) Nor is it questioned that the Due

Process Clause of the Fourteenth Amendment makes

the Eighth Amendment’s prohibition against excessive fines and cruel and unusual punishments applicable to the States, including California. Cooper

9 In the trial court Mr. Altstatt contended that, because “it

has not been proved that any constitution operates on [Mr. Altstatt], then it follows that the legislature created under the

power of said constitution does not operate on [Mr. Altstatt]”;

and that, “[s]ince it has not been proven that any legislature operates on [Mr. Altstatt], then it follows that any/all codes/titles/statutes/rules and regulations promulgated by such legislature also cannot be proved to operate on [Mr. Altstatt], and absent a proving on the record that your constitution operates on

[Mr. Altstatt], the court does not have subject matter jurisdiction.” Clerk’s Tr. 00033.

10 In summary, Mr. Altstatt mistakenly believes he is a “sovereign citizen.” However, it is well-established that such arguments are nonsensical and wholly without merit. See, e.g.,

United States v. Weast 811 F.3d 743 746 (5th Cir. 2016); United

States v. Mitchell 405 F.Supp.2d 602, 606 (D. Md. 2005).

5

Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424,

433 (2001); see also Timbs v. Indiana 139 S. Ct. 682

(2019).

This Court has already interpreted the Excessive

Fines Clause to apply to civil fines. Hudson v. United

States 522 U.S. 93, 103 (1997) (“the Eighth Amendment protects against excessive civil fines”). Courts

have further extended the Eight Amendment’s proscription against excessive fines to city ordinances

that impose fines on violators. Singh v. City of Oakland 295 Fed. Appx. 118, 120 (9th Cir. 2008) (implying

that a complaint may allege that a city ordinance imposing excessive fines violates the Eighth Amendment); Towers v. City of Chicago 173 F.3d 619, 624

(7th Cir. 1999) (holding that Excessive Fines Clause

of Eighth Amendment applied to a city ordinance imposing fines on violators); De Weese v. Palm Beach,

812 F.2d 1365 (11th Cir. 1987) (applying the Eighth

Amendment to an ordinance imposing fines on violators).

A. This Court has Already Firmly Established the

Gross Disproportionality Standard and the

Guideposts for Applying It.

Before United States v. Bajakajian, 524 U.S. 321

(1998), this Court had “little occasion to interpret, and

ha[d] never actually applied, the Excessive Fines

Clause.” Id. at 327. When faced squarely with how to

“articulate[] a standard for determining whether a

punitive forfeiture is constitutionally excessive,” this

Court made clear that a forfeiture violates the Excessive Fines Clause if it is “grossly disproportionate to

the gravity of a defendant’s offense.” Id. at 334. It appears that, in Mr. Altstatt’s view, a court must recite

that language – verbatim – and failure to do so means

6

this Court should grant review because the courts below are confused. But Bajakajian did not dictate the

gross disproportionality standard needed to be recited

nor did it leave lower courts to grasp in the dark when

the time came to apply it. Rather, it provided two general “considerations” and several fact-specific guideposts to inform lower courts’ analyses. Bajakajian,

524 U.S. at 336-40.

First, the Court extended its jurisprudence regarding the Cruel and Unusual Punishments Clause to

the Excessive Fines Clause, emphasizing that “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.”

Id. at 336. The Court also cautioned that “any judicial

determination regarding the gravity of a particular []

offense will be imprecise.” Id. Taken together, these

principles militate against any idea of “strict proportionality between the amount of a punitive forfeiture

and the gravity of a criminal offense,” and in favor of

the more flexible “gross disproportionality” standard

instead. Id.

Second, the Court addressed how to apply the gross

disproportionality test. Rather than announcing the

overall standard for Excessive Fines Clause challenges and remanding for the lower court to apply it

in the first instance, Bajakajian determined that the

specific forfeiture in question “would violate the Excessive Fines Clause.” 524 U.S. at 337. The Court

looked at the harshness of the penalty, the nature and

severity of the offense, and the degree of culpability

involved. Id. at 337-40. It emphasized the weightiness

of a $357,114 forfeiture where there was “no correlation between the amount forfeited and the harm that

the Government would have suffered had the crime

7

gone undetected.” Id. at 339. The forfeiture stemmed

from a pure “reporting offense” that was “unrelated to

any other illegal activities,” and the harm from the

offense was “minimal.” Id. at 337-38. And finally, the

fact that the “respondent [did] not fit into the class of

persons for whom the statute was principally designed,” together with a comparison of the $357,114

forfeiture to the maximum fine of $5,000 and sentence

of six months, “confirm[ed] a minimal level of culpability.” Id. at 339. Extrapolating from the Court’s

guidance, every gross disproportionality challenge requires “case specific” analysis. The lack of a checklist

to guide every gross disproportionality challenge does

not make the factors the Court did rely on any less

instructive. Indeed, the fact-intensive nature of these

challenges cautions against any “magic words” approach – which might artificially limit a courts’ consideration of the full circumstances bearing on the

gross disproportionality analysis in a particular case.

After all, where judicial determinations are intrinsically “imprecise,” Bajakajian, 524 U.S. at 336, the

lack of a rigid test is an advantage, not a drawback.

This Court has thus articulated consistent and

workable standards to apply in Excessive Fines

Clause cases. There is no need to revisit the issue

here.

8

B. State and Federal Courts Apply Bajakajian Consistently.

There is no evidence that courts struggle to apply

Bajakajian. If anything, there is remarkable unity

among state and federal courts. Courts consistently

use the gross disproportionality standard to resolve

various types of Excessive Fines Clause challenges,

and they apply that standard in like fashion. There is

no meaningful division among courts that Bajakajian

controls Excessive Fines Clause challenges.

Notably, Bajakajian involved a criminal forfeiture,

which meant the Court had no occasion to hold that

the gross disproportionality standard governs nonforfeiture cases. Even so, as discussed below, lower

courts are overwhelmingly united on this issue and

apply the same test in non-forfeiture cases, i.e.,

whether the penalty or forfeiture was “grossly disproportional to the gravity of [the] offense” Bajakajian,

524 U.S. at 324.

One exception is the Fifth Circuit’s decision in Newell Recycling Co. v. E.P.A., 231 F.3d 204 (5th Cir.

2000). There, the Fifth Circuit declined to

acknowledge Bajakajian’s applicability to civil penalties, reasoning instead that “[n]o matter how excessive (in lay terms) an administrative fine may appear,

if the fine does not exceed the limits prescribed by the

statute authorizing it, the fine does not violate the

Eighth Amendment.” Id. at 210. This decision takes

to the extreme the weight other courts lend legislative

determinations. For example, the Eleventh Circuit

has explained that, “if the value of forfeited property

is within the range of fines prescribed by Congress, a

strong presumption arises that the forfeiture is

9

constitutional.” United States v. 817 N.E. 29th Drive,

Wilton Manors, Fla., 175 F.3d 1304, 1309 (11th Cir.

1999) (footnote omitted). While most courts, like the

Eleventh Circuit, apply this presumption within the

Bajakajian framework, the Fifth Circuit stands alone

in deeming it conclusive, even where it may result in

gross disproportionally.

Newell offers no reason for this Court to grant the

Petition. It was decided more than twenty years ago,

and it remains the outlier today. Nor is this the right

case to evaluate Newell’s holding, even if the Court

were inclined to do so, the parties agree that Bajakajian controls. Thus, even assuming Newell was

wrongly decided, this is the wrong case by which to

correct it. See, e.g., Timbs v. Indiana, 139 S. Ct. 682,

690 (2019) (declining to consider an issue that “would

lead us to address a question neither pressed nor

passed upon below”).

The shallowness of the split over whether Bajakajian applies, and the inadequacy of this case to

address it, is particularly relevant because Mr. Altstatt’s entire argument as to why “the question presented is one of great legal and practical importance,”

Pet. 19 (capitalization altered), turns on his assertion

that there is “confusion among state courts and federal circuits” regarding whether they are bound by

Bajakajian.” Pet. 20.

This Court’s recent decision in Timbs does not alter

this calculus. Mr. Altstatt argues that “a consistent

nationwide approach to the Excessive Fines Clause is

needed after Timbs” or “the federal courts’ confusion

over what the Excessive Fines Clause requires will

only metastasize to the state courts if left unchecked.”

10

Pet 19. However, like many States, California treated

the Excessive Fines Clause as incorporated long before Timbs. See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., 124 P.3d 408, 421 (Cal. 2005). Moreover, Timbs does not confuse courts when it comes to

applying Bajakajian, as its holding was unaffected by

Timbs and remains good law; the States that did not

previously look to federal law can do so now. 11

Furthermore, there is no material division among

the near entirety of courts that apply Bajakajian.

State and federal courts consider the same general

factors when determining whether a civil penalty,

civil forfeiture, or criminal forfeiture is grossly disproportionate. The Petition seizes on variations in phrasing and the different ways that courts organize the

relevant factors as evidence of division. See, e.g., Pet.

19 (“This is significant because the R.J. Reynolds factors are different, and do not include all of the considerations prescribed by Bajakajian.”). Yet, for a factspecific inquiry, like gross disproportionality, it is

hardly surprising to find some variation around the

edges. The important question is whether courts

agree on the nature of factors that bear on the analysis, not whether they use identical language to describe them. And the answer to that fundamental

question is “yes.” In the two decades since Bajakajian,

11 Even if Timbs leaves some questions unresolved, this is the

wrong case by which to address them. Timbs did not determine

whether a different standard may govern civil forfeiture cases –

particularly civil in rem forfeitures like those at issue in Austin

v. United States, 509 U.S. 602 (1993). The Court declined Indiana’s invitation to overrule Austin in Timbs, and as a civil penalties case, this case is certainly not an appropriate vehicle by

which to revisit that question.

11

courts have coalesced around three general factors:

(1) the harshness of the penalty; (2) the seriousness of

the offense; and (3) the defendant’s culpability. Agreement around these specific factors is no accident – the

principles flow directly from Bajakajian. See 524 U.S.

at 337-40.

State Courts of Last Resort

California. Contrary to Mr. Altstatt’s contention,

different wording aside, the Supreme Court of California is consistent with Bajakajian in People ex rel.

Lockyer v. R.J. Reynolds Tobacco Co., 124 P.3d 408,

421 (Cal. 2005). There, the court considered the

harshness of the penalty in terms of the defendant’s

ability to pay and by comparing it to the penalties imposed in other States. See id. (citing Bajakajian, 524

U.S. at 337-38). The State’s high court also looked to

the harm caused and its “relationship…[to] the penalty.” Id. Finally, the court considered “the defendant’s culpability.” Id.

Georgia. In Howell v. State, 656 S.E.2d 511 (Ga.

2008), the Georgia Supreme Court considered three

factors: the court reviewed the “harshness of the penalty,” the “inherent gravity of the offense,” and

“whether the criminal activity… was extensive,” id. at

512 (citation omitted).

Illinois. In People ex rel. Hartrich v. 2010 HarleyDavidson, 104 N.E.3d 1179 (Ill. 2018), the court con-

sidered “the harshness of the penalty” and the “gravity of the offense.” Id. at 1184 (citation omitted). There

is also no substantive difference between asking

“whether the [unlawful] conduct… was extensive,” id.

(citation omitted) and reviewing the extent of the defendant’s culpability.

12

Massachusetts. Maher v. Ret. Bd. of Quincy, 895

N.E.2d 1284 (Mass. 2008) illustrates that the Supreme Judicial Court of Massachusetts addresses

both “the maximum penalties authorized by the Legislature,” id. at 1291 (citing Bajakajian, 524 U.S. at

337-39), and the defendant’s culpability, id. (considering “circumstances of [the defendant’s] offenses” and

relationship to “any other illegal activities”). In addition, Maher also made clear that the court considers

whether the unlawful act is “serious in nature,” or, in

other words, that Massachusetts considers the same

general factors as its sister States. Id.

Minnesota. The Supreme Court of Minnesota also

considers these factors when determining whether a

civil penalty constitutes an excessive fine. In Wilson

v. Comm’r of Revenue, 656 N.W.2d 547 (Minn. 2003),

the court compared the civil penalty with “fines imposed for the commission of other offenses in the same

jurisdiction” and “in other jurisdictions.” Id. at 555. It

also expressly considered “the gravity of the offense.”

Id. Although Wilson did not specifically mention the

defendant’s culpability, the court considered relative

culpability for violations of similar provisions when

determining what weight it should give to the “disparity in liability” for these similar offenses. Id. at 556.

New York. The Court of Appeals of New York breaks

out the harshness of the penalty into multiple subfactors: the value of the property forfeited, the maximum punishment that could have been imposed, and

the defendant’s economic circumstances. See City of

Nassau v. Canavan, 802 N.E.2d 616, 622 (N.Y. 2003).

The court also considers “the seriousness of the offense” and the actual and potential harm “had the defendant not been caught.” Id.

13

Pennsylvania. The Supreme Court of Pennsylvania

continues the pattern. See Commonwealth v. Real

Prop. & Improvements Commonly Known As 5444

Spruce St., Phila., 832 A.2d 396, 402 (Pa. 2003). The

court considers “the penalty imposed as compared to

the maximum penalty available,” id. – that is, the

harshness of the penalty. The court also considers the

“harm resulting from the crime charged,” id., or the

seriousness of the offense. Finally, the court considers

“whether the violation was isolated or part of a pattern of misbehavior,” id., i.e., the defendant’s culpability.

Utah. Finally, the Supreme Court of Utah looks to

the same factors, as well. See State v. Real Prop. at

633 E. 640 N., Orem, Utah, 994 P.2d 1254, 1259 (Utah

2000). The court considers multiple sub-factors when

“determin[ing] the forfeiture’s harshness”: its objective and subjective value, the hardship it imposes on

the defendant, and “the comparative punishment factor.” Id. The court also reviews “the gravity of the particular offense,” id., and “the defendant’s culpability”

id.

Federal Courts of Appeals

Decisions from each of the federal courts of appeals

are consistent with those of State courts of last resort

– relying on the same three general factors to apply

Bajakajian’s gross disproportionality standard to the

specific facts before them.

First Circuit. In United States v. Heldeman, 402

F.3d 220, 223 (1st Cir. 2005), the court considered the

harshness of the penalty relative to applicable sentencing guidelines. See id. (citing Bajakajian, 524

U.S. at 337-40). The court also reviewed the

14

seriousness of the offenses in terms of “the harm

caused by the defendant,” and asked “whether the defendant falls into the class of persons at whom the

criminal statute was principally directed” to assess

culpability. Id.

Second Circuit. Using a similar approach to the

First Circuit, the Second Circuit considers “the maximum sentence and fine that could have been imposed,” the “essence of the crime,” and “whether the

defendant fits into the class of persons for whom the

statute was principally designed.” United States v.

Viloski, 814 F.3d 104, 110 (2d Cir. 2016) (citation

omitted).

Third Circuit. The Third Circuit’s non-precedential

decision in United States v. Young, 618 F. App’x 96

(3d Cir. 2015) follows the usual pattern. The court

phrased harshness of the forfeiture as “the maximum

fine authorized by statute and the sentencing guidelines which are associated with the offense or offenses,” seriousness of the offense as “the nature of

the offense or offenses,” and culpability as “whether

the defendant falls into the class of persons for whom

the statute was designed.” Id. at 97.

Fourth Circuit. The Fourth Circuit’s factors consider various sub-factors organized around three

themes: the “amount of the forfeiture and its relationship to the authorized penalty,” “the nature and extent of the criminal activity,” and the defendant’s

“level of culpability.” United States v. Jalaram, Inc.,

599 F.3d 347, 355-56 (4th Cir. 2010) (citing Bajakajian, 524 U.S. at 337-39).

15

Fifth Circuit. Only the Fifth Circuit does not consider these factors. Yet, as discussed above, this result

stems from the court’s more fundamental holding that

a fine within legislative limits “does not violate the

Eighth Amendment” – in other words, there is inattention to gross disproportionality. Newell, 231 F.3d

at 210.

Sixth Circuit. As with the Third Circuit, a non-precedential decision from the Sixth Circuit considers factors including “the potential fine under the advisory

Guidelines range, the maximum sentence and fine

that could have been imposed,” and the “nature of the

offense.” United States v. Zakharia, 418 F. App’x at

422 (citations omitted). The court also reviews facts

that underscored the defendant’s culpability, including “gravely undermin[ing] the judicial process” by lying under oath and otherwise causing ‘significant

harm,” id. – and relied on a precedential opinion establishing that culpability is part of the Sixth Circuit’s test, id. (citing United States v. Ely, 468 F.3d

399, 403 (6th Cir. 2006)).

Seventh Circuit. For its part, the Seventh Circuit

draws its test directly from Bajakajian and the Second Circuit, using the same analysis discussed above

in Vilosky. See United States v. Malewicka, 664 F.3d

1099, 1104 (7th Cir. 2011) (citing Bajakajian, 524 U.S.

337-39; United States v. Varrone, 554 F.3d 327, 331

(2d Cir. 2009)).

Eighth Circuit. In United States v. Aleff, 772 F.3d

508 (8th Cir. 2014), the Eighth Circuit analyzed “the

sanctions in other cases for comparable misconduct,”

the “relationship between the penalty and the harm,”

16

and “the reprehensibility of the defendant’s conduct.”

Id. at 512 (citation omitted).

Ninth Circuit. The Ninth Circuit phrases its consideration of the harshness of the penalty as “other penalties that may be imposed for the violation.” United

States v. $132,245.00 in U.S. Currency, 764 F.3d

1055, 1058 (9th Cir. 2014) (citation omitted). The

court describes the seriousness of the offense as “the

nature and extent of the crime” and “the extent of the

harm caused,” and it analyzes culpability by asking

“whether the violation was related to other illegal activities.” Id. (citation omitted).

Tenth Circuit. The Tenth Circuit considers the

harshness of the penalty in several ways, including by

comparing the penalty to the statutory maximum

penalty and relevant sentencing guidelines. United

States v. Wagoner Cty. Real Estate, 278 F.3d 1091,

1100 (10th Cir. 2002) (citing Bajakajian, 524 U.S. at

337-38). It also views “the extent of the criminal activity” and “the harm caused to other parties” – or the

seriousness of the offense – and “related illegal activities.” Id.

Eleventh Circuit. Using now-familiar language, the

Eleventh Circuit analyzes “other penalties authorized

by the legislature,” “the harm caused by the defendant,” and “whether the defendant falls into the class

of persons at whom the criminal statute was principally directed.” United States v. Seher, 562 F.3d 1344,

1371 (11th Cir. 2009) (citation omitted).

*

*

*

The repeated refrains from State and federal appellate courts reveal common factors informing the gross

17

disproportionality analysis that come straight from

Bajakajian – and underscore that “gross disproportionality” has proven a workable standard. Tellingly,

Mr. Altstatt does not explain how the result here

would have differed had the California Court of Appeal cited to Bajakajian directly, rather than R.J.

Reynolds, which cites to and is consistent with Bajakajian. Different terms to explain courts’ rationales

only matter if they lead to different outcomes in similar cases. The variations Mr. Altstatt highlights in his

Petition do not reach that level. Indeed, most courts

freely recognize that the factors they name are not set

in stone, and that listing certain factors does not bar

consideration of others in appropriate cases. See, e.g.,

Aleff, 772 F.3d at 512 (“[p]roportionality is determined by a variety of factors, including [exemplar factors]”); Canavan, 802 N.E.2d at 622 (introducing test

with the phrase, “we consider such factors as”). Because courts are neither confused nor divided over

how to apply Bajakajian, there is no need for this

Court to grant review.

C. The Decision of the California Court of Appeal is

not in Conflict with the Excessive Fines Clause.

With no meaningful division over the proper application of the gross disproportionality standard in Excessive Fines Clause cases, the Petition becomes essentially a request for error-correction. Yet, viewed

through either Bajakajian’s or R.J. Reynolds’s lens,

the two $250 daily penalties, for the duration of the

public nuisance, are not grossly disproportional to Mr.

Altstatt’s violations of law. Indeed, multiple factors

confirm that Mr. Altstatt’s penalty was anything but

grossly disproportional to his offense.

18

First, Mr. Altstatt was violating the law for more

than three years and was on notice of his obligation to

ensure that his property was not a public nuisance –

he admits he received the City’s Notice and Order to

Clean, Remove, Repair and/or Cease a Public Nuisance as early as September 2014, a year prior to the

City initiating its civil action in the trial court. Pet. 4.

Further, Mr. Altstatt’s pattern of violations weakens

his argument because, for more than three years – after the City initiated its action in the trial court –

nothing in his conduct demonstrated that he would be

willing to comply with the laws of the City. Instead,

he sought to frivolously delay the action and divest

the trial court of jurisdiction through sham removal

proceedings and automatic stays. The imposition of a

“per day” civil penalty is justified to deter gross

abuses of the law from those who expose the public to

unnecessary health and safety risks.

Second, Mr. Altstatt’s violations were not harmless

misconduct: as the court below found, Mr. Altstatt

was culpable and maintained a public nuisance that

was injurious and a threat to the health and safety of

the residents of the City of Sacramento for 1136 days.

Clerk’s Tr. 00599-603, 00622-24.

Third, each daily civil penalty assessed was $250

dollars per day, which is the minimum under the

City’s ordinance, per violation, for a total of $500 per

day. Clerk’s Tr. 00623. By comparison, each such penalty is one-fourth of the daily penalty amount the California Court of Appeal found constitutional in City &

Cnty. of San Francisco v. Sainez, 92 Cal.Rptr.2d 418,

431, (Cal. App. 1st Dist. 2000); see also United States

v. Hines, 88 F.3d 661 (8th Cir. 1996) (holding that a

fine that “is well within the statutory maximum” is

19

“not excessive, in violation of Eighth Amendment”

even if it amounts to the defendant’s entire yearly income). More broadly, the civil penalties imposed are

proportional when compared to similar laws. See e.g.,

Tucson, Ariz., Code of Ordinances § 16-48 (authorizes

a $100 to $2,500 civil sanction for each day the violation exists); San Jose, Cal., Code of Ordinances §

1.08.015 (authorizes a civil penalty not to exceed

$2,500 for each day the violation continues); Boston,

Mass., Municipal Code § 16-57.6 (authorizes a $300

penalty for non-criminal citations for each day the violation persists); Houston, Tex., Code of Ordinances

§§ 10-451(d), 10-458 (authorize a $50 to $2,000 penalty for each day the violation continues.).

The California Court of Appeals correctly concluded

that there is no evidence to show an Eighth Amendment violation, despite its truncated analysis. The

penalty is justified by the “correlation between the

amount [penalized] and the harm,” Bajakajian, 524

U.S. at 339, as well as the penalty’s similarity to those

authorized in the majority of States. The state court

correctly determined that the civil penalty was not

grossly disproportionate to Mr. Altstatt’s repeated

and continuous violations of the City’s law. In short,

this case presents no important and unresolved question of federal law nor any error to correct.

20

CONCLUSION

The petition should be denied.

Respectfully submitted,

OFFICE OF THE SACRAMENTO

CITY ATTORNEY

915 I Street, Room 4010

Sacramento, CA 95814-2608

Telephone: (916) 808-5346

mruyak@cityofsacramento.org

SUSANA ALCALA WOOD

City Attorney

MATTHEW D. RUYAK*

Assistant City

Attorney

ANGEL A. SOLIS

Deputy City Attorney

Counsel for Respondent

*Counsel of Record

January 17, 2023