Respondents Brief — United States v. Ward

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JAN 80 1980

IGHAEL RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-394

UNITED STATES OF AMERICA, Petitioner,

VS.

L. O. WARD d/b/a L. O. WARD OIL

AND GAS OPERATIONS.

Respondent.

On Warr or CrerTIoORARI TO THE UNITED STATES

Court or APPEALS For THE TENTH CrrcutT

BRIEF FOR THE RESPONDENT L. 0. WARD

STEPHEN JONES

P.O. Box 3339

Enid, Oklahoma 73701

Davin C, BUTLER

P.O. Box 3887

Enid, Oklahoma 73701

JAMES SEARS BRYANT

P.O. Box 1844

Enid, Oklahoma 73701

Attorneys for L. O. Ward

BE. l. Menpanrane, Ino., 986 Cherry Street, Kansas City, Mo, 84198, (R18) 421-8080

NOTICE

INDEX

STATEMENT

SUMMARY OF ARGUMENT

ARGUMENT—

Proposition I:

Penalties, Fines, and Forfeitures Have His-

torically Been Treated As Penal or Punitive for

Purposes of Avoiding Self-Incrimination ................ F

A. Background to English Rule ~.............................

B. The English Right Against Self-Incrimina-

tion Extends to Actions for Penalties and

I nn oe conibbeaieabhainn eee

C. American Colonial Expression Prior to Rati-

fication of Self-Incrimination Claims ................

1. English common law adopted in colonies ....

American colonies extended protection

against self-incrimination to actions for

fines, penalties, and forfeitures -...................

Post ratification proceedings treat actions to

collect fines, forfeitures and penalties as

“criminal cases” for purposes of the privi-

lege against self-incrimination ...................-..

In Boyd v. United States and subsequent

cases this court held that a civil action to

collect fines, penalties, or forfeitures was a

“criminal case” for purposes of the Fifth

Amendment self-incrimination clause ..........

Proposition II:

The Factors Enunciated in Kennedy v. Men-

doza-Martinez Are Not Controlling in This Case,

Because (1) the Factors Were Not Developed,

Listed Only As Dictum, (2) They Were Not Relied

Upon in the Case Where They Were Developed,

(3) Employing the Factors Leads to Ambiguous

Results. However, if Utilized Here, They Sup-

port the Decision of the Court Below ........................

‘.

Whether the sanction involves an affirma-

tive disability or restraint -.......................2..--

Whether the sanction has historically been

regarded as punishment ..............2.2..222-.-..------

Whether the sanction comes into play on a

TET

Whether the sanction’s operation will pro-

mote the traditional aims of punishment-

retribution and deterrence ..........0.0.....0........

Whether the behavior to which it applies is

I spits secilichscnanscch oeiecnaniasonignees

Whether an alternative purpose other than

punishment may rationally be ascribed to

aS CRE ee a ee

Whether the sanction appears excessive in

relation to the alternative purpose assigned

SRR clatctsiesecnesecicacassanebetisesbniicealhsieteiandsducdioesiistoatnbens

Citations

CASES

Atlas Roofing Co. v. Occupational Safety & Health

Commission, 518 F.2d 990, aff’d on other grounds,

Re I I sick cee 0 oe ae 04, 55

Barker v. Wingo, 407 US. 6146 .occcconcn nnn cococecccceeen se 46

Bird v. Hardwicke, 1 Vernon 109 2.0.......ccecccccececececeseeeee 16

Boteler v. Allington, 3 Atkyn 453 0.0.0.0... cccccccccccccccssssene 15

Boyd v. United States, 116 U.S. 616 _.............. 6, 9, 32, 35, 36,

37, 38, 39, 40, 44, 45, 69

ryan -v. Tee, OB Ge. OP 29

Bramble v. Richardson, 498 F.2d 968 stabnisiamenbaialaiiiceanstone 39

California Bankers Assn. v. Schultz, 416 U.S. 21 ........ 2

California v. Byers, 402 U.S. 424 oo. .cecccccccccccccsecccsseeoeee 4

monty ©. Bialce, 1 Atty GE onesies coccccccseccekeecenes 14

Earl of Suffolk v. Green, 1 Atkyn 450 0 15

East India Company v. Campbell (Exchequer), 1 Vesey

ee EE cane ees nee B 12, 16

Grosso v. United States, 390 U.S. 62 o.oo cccccccccceccceeeee 70

Harrison v. Southcoate, 1 Atkyn 528 14

Helvering v. Michell, 303 U.S. 391 .............. 6, 9, 36, 39, 43,

44, 45, 47, 54, 66

Hepner v. United States, 213 U.S. 103 _.............. 6, 35, 43, 45

Hoffman v. United States, 341 U.S. 479 39

Johnson v. Goss, 10 Tenn. (2 Yerg) 110... 26

Kastigar v. United States, 406 U.S. 441 69

Kennedy v. Mendoza-Martinez, 372 U.S. 144 7, 48, 53,

04, 55, 57, 61

Langhorne v. Commonwealth, 76 Va. 1912 29

Lees v. United States, 150 U.S. 474 ....6, 9, 34, 35, 36, 39, 43, 44

Liéoter o. Bakery, © TRU, SD ance asinsiscececccnwcsnstccsoccnten 27

EAGS C0: ZNO VOT,, TOD UT. TIE iiss i oes tenicrne 61

Marshall v. Barlow’s Inc., 436 U.S. 307 ....02....00.222.eeeeeeee 44

Masseth v. Johnson, (C.C. 59 Fed. 613 -.........2000220002000222- 30

Miller v. Crayon, 2 Brevard (S.C.) 108 .....0...0.2. ee. 12

Miranda v. Arizona, 364 U.S. 436 ..............cecccccccccscssceeesse 38-39

Murphy v. Waterfront Commission, 378 U.S. 52 ........ 39, 70

Olmstead v. United States, 277 U.S. 430 -....02.2.22e eee 6,9

One Lot Emerald Cut Stones v. United States, 409 U.S.

SIMI cei sche pepusaishoagcooiihuceenomedeaconiicenantnsosoednsakamieesteaseL aia 38, 43, 44, 45

One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.

I cients pseu acosetuiolcsnsegbaeieeaiaetupeetiomaapleianenaneedaaae ama nea 44,45

People v. Herrick, 13 Johnson (N.Y.) 82 ......2.00.0.2.2....-.- 12

Fweee @. Mmcter,, 1D Weed, GOD nna eeccecesnssseserrscninn 26

TR ti TP, TI iiss eestor 55

oe ae Le | a | een Onn 28

Rex Trailer Co. v. United States, 350 U.S. 148 —............ 44

canes Or. ME, FAC nicki 13

BOO 0, TI, Sk. TO ic ciccceiisirccecenieecocnaeniae 12

Taney v. Kemp, 4 Harris and Johnson 348 ............22.......... 26

Trial of Jonathan Freind, States Trials, XIII, 1 (1696) .. 12

Trial of Nathaniel Reading, State Trials, VII 259 (1679) 12

Trial of Peter Cook, State Trials, XIII, 311 (1696) ........ 12

SOUR ©. TRU, FO Ee OO niin insvciedccitiiceenieal 52, 55

Ullman v. United States, 350 U.S. 422 2... eee eeeeeeeeeeeeee 39

United States v. Allred Towing Corp., 578 F.2d 978 ......2, 47

United States v. Ashland Oil and Transp. Co., 364 F.

IN SIE sicasnsnieonionokendeso-nctaatissiqainibbeniseiealieasura inane 46

United States v. Atlantic Richfield Co., 429 F.Supp.

LS 50

United States v. Constantine, 296 U.S. 287-000... ne. 61

United States v. Eureka Pipeline Co., 401 F.Supp. 934 51

United States v. Futura, Inc., 339 I’.Supp. 162 .............. 55, 56

United States v. General Motors Corp., 403 F.Supp.

Tee cr seveucenevers: 47, 50, 66

United States v. Gulf Oil Corp., 573 F.2d 1303 -............... 50

United States v. Interlake Steel Corp., 297 F.Supp. 912 41

United States v. LaFranka, 282 U.S. 568 .......................... 61

United States v. LeBeouf Bros. Towing Co., 377

F.Supp. 588, rev’d, 537 F.2d 149 ooo ceeceecececeeeeee 47, 54

United States v. Maplewood Poultry Co., 327 F.Supp.

LLL STAT 46

United States v. Marathon Pipeline Co., 589 F.2d 1305 49,50

United States v. Mobil Oil Corp., 464 F.2d 1124 ............. 46

United States v. Regan, 232 U.S. 37 -................... 6, 9, 36, 37, 43

United States v. Sullivan, 274 U.S. 259 0 4

United States v. Tex-Tow, Inc., 589 F.2d 1310 ................ 49

United States v. United States Coin and Currency, 401

REET SS Ae 5A 6, 7, 9, 37, 39, 43, 44

United States v. United States Steel Corp., 328 F.Supp

LSS 41

United States v. W. B. Enterprises, 378 F.Supp. 420 ....50, 56

United States v. White Fuel Corp., 498 F.2d 619 ............ 40, 61

United States ex rel. Marcus v. Hess, 317 U.S. 537 .-.-44, 47

Vaughn v. Perrine, 3 N.J. 299 000... 12

Ward v. Coleman, 423 F.Supp. 1352 0.0.0... ccececccccccoeeeeeeeeeee 54

Ward v. Coleman, 598 F.2d 1187 oo... coccccecececcceceeceececoeee 54

CONSTITUTION, TREATY, STATUTES AND REGULATIONS

United States Constitution, Fifth Amendment .......... passim

Supreme Court Rule 40(3) 22.1... .--cccccccscccsccsesescsscencseees 1

Section 311(b) of the Federal Water Pollution Control

Act, 33 U.S.C. (Supp. IV, 1974) 1321(b) 2. passim

Federal Water Pollution Act, 1978, Pub. L. 95-576, 92

ee eniniesnicihldgiinsctisceiapaccsaiiaechidiovnit 3

ee NIN TUE oscsnsctecsinnsreoprrnsnsconscnenninsensinannnineneriod 40, 57, 58

Re ee I NE so steeiseiecesnicaienitsipnsiotsscensinacnsictinivececssaan 41

BE Se TL | | eee eee ene 41

38 U.S.C. Section 1321 (1)€B) ncaa ncnsncncccccecccnceosesenseeee 5, 67

33 U.S.C. Section 1321 (b) (6) 2.0.2 5, 41, 54, 55, 60, 66

33 U.S.C. Section 1321(c) .......... pinelibiabacncesiaaleteieaiadlasiipeotaciiaacheah 62

ae Wrarmeas M TD ices cnccbenicensdcnicserveivcesees 62

REE el EY + | ee ee 63

SU Sree MN BO isc ssnsntnececcestvecssecscsersenee 62

I SE ice MIND RCRD sasssniinessnscsinccnssdcccncsacetescevecenestscnoicenns 62

a srs, MINN, MU Scien eccasenenstmaenvecsoucesounce 62

SS USC. Sections 1SRG (te) (5) — nna ccccscccccsceeeeccece 39

Se UDC, BSoction TFBCCH) (6) ana snce can ceccsseccseceenceeeee 43

Do UI. Section TSAR) CD) an. cecccsnccccceeccccccececesoscees 39, 41

IO ens PN I ce etacctec ak tice cose secsesadian eo sdivosrcdecumnie 45

Fe nies I lis gilis tiers inncecseseccersicatenasinacomsnl 45

MISCELLANEOUS

Note, 37 Tulane Law Review 831 (1963) 0000000000000... 53

Commandant Instruction No. 5922.11A, App. 3840 ... 58

GE FE Ga Wh WEI TI osisinciccncetscbacniscniccseveinnnesredeoassescns 69

Blackstone’s Commentaries, ITI, 363 20.0.0... eee 12

Cartwrightiana, Ed. Albert Peel and Leland H. Carl-

ORD TP ID diccistencasichacieivecaciesontciscdpaiccstintionaashcdoace ni 12

VII

The Church History of Britain, Ed. J. S. Brewer (Ox-

SUNN, SI dora rceieacedeldehisteclatedaehecad cadet retin ialactl il acc

Chaffee, “Colonial Courts and the Common Law,” in

Flaherty, Ed., Essays in the History of Early Amer-

ican Law (Univ. of North Carolina Press, Chapel

OG Ng I saitttcineniacaiaceeal htoeetontcicecsteddc eters:

Charney, Johnathan I., “The Need for Constitutional

Protections for Defendants in Civil Penalty Cases,”

59 Corn. L. Rev. 478, 503, 515 (1974) oo. eceeeeee ee

Comment, “Compelled Self-Disclosure and Civil Penal-

ties: The Limits of Corporate Immunity in Oil

Spill Cases, 55 Boston University Law Review 112,

Clark, J. Morris, “Civil and Criminal Penalties and

Forfeitures: A Framework for Constitutional Anal-

ge A eae LER

The Bill of Rights, A Documentary History, Bernard

Schwartz (Chelsea House, N.Y., 1971), Vol. I ........

Doctrinal Treatises and Introductions to Different Por-

tions of the Holy Scriptures, William Tyndale (Cam-

I MTN litclscintarttaliaslpnnda ales seoncagnaberan Sensi ssc wi ands,

Documents of American History, Ed. by Henry Steele

aC TETS SOI Ak USI. 8c eae Ee SCOT a ae

J. Goebel, “King’s Law and Local Custom in Seven-

teenth Century New England,” in Flaherty, Ed.,

Essays in the History of Early American Law (Univ.

of North Carolina Press, Chapel Hill, 1969), p. 88 ....

The Federalist Papers, No. 10; No. 15; No. 25; No. 54;

Bs ey Bi incscsicesicnschircdettecnsleescccicesaiuc,

Note, “The Concept of Punitive Legislation and the

Sixth Amendment,” 32 U. Chi. L. Rev. 290, 291

RUNES hep we SNE Nee elon SeaCrE NFE Oe ARATE Ra od we

VIII

Goldschmid, Harvey J., “An Evaluation of the Present

and Potential Uses of Civil Money Penalties as a

Sanction by Federal Administrative Agencies” (Nov.

B, STR) nana .snsmrrnssnrveccienitcehasnlienmenantmniaimebbanaaanaanalaa 69

Holdsworth, William Searle, A History of English Law

(Taian, ROGGE) EG sscencsinsinisniectientoenaniaanmaaianameeians 11

Levy, Leonard W., Judgments, Essays on American

Constitutional History (The Right Against Self-In-

crimination), p. 269 (Quadrangle Books, Chicago,

DO TR) ..ncecsaraeoenssxensinisicsnpeiinitaamianiasamimaa iam aie ea 10, 11

Levy, Leonard W., Origins of the Fifth Amendment,

(Oxford Univ. Press, N.Y. 1908) ..5.04.00.45.. 20, 24

Boston’s, A Journal of the Times. .........-.....<.-c.ecs.esseoecseees 23

Black, Henry Campbell, Constitutional Law (St. Paul,

Minnesota’ West Pub. Co., p. 574 (1857) 000... 31

Tyndale, William, “The Obedience of a Christian Man”

(1528), reprinted in Henry Walker, Editor, Doctrinal

Treatises and Introductions to Different Portions of

the Holy Scriptures (Cambridge, 1848) —......02...0000000.... 12

Wigmore, Treatise on Evidence, I § 575 -00... eee 11

The Writings of Thomas Jefferson, Ed. Andrew A.

Lipscomb (Thomas Jefferson Memorial Association

of the United States, Washington, D.C. 1904), Vol.

> i FB 4: | ey Ta el 18

Senate Report No. 91-351, 91st Cong., Ist Sess.

CT) naevus 49, 60

SRS BOUIN BI FT AS 8

In the Supreme Court of the United States —

OCTOBER TERM, 1979

No. 79-394

UNITED STATES OF AMERICA, Petitioner,

VS.

L. O. WARD d/b/a L. O. WARD OIL

AND GAS OPERATIONS,

Respondent.

On Writ oF CERTIORARI TO THE UNITED STATES

CourRT OF APPEALS FOR THE T'ENTH CIRCUIT

BRIEF FOR THE RESPONDENT L. 0. WARD

NOTICE

Pursuant to the command of Supreme Court Rule

40(3), this brief omits references to the reports of the

opinions below, a statement of the grounds of jurisdiction

of this Court, a recitation of the Constitutional and Statu-

tory provisions which this case involves, and the question

presented for review, because the Respondent is satisfied

with the accuracy of the statements in Petitioner’s brief

on those subjects.

STATEMENT

Ward does not disagree with the summary of material

facts set forth in the Government’s Brief on pages 5 through

12, for there is no factual dispute; a facility owned and

operated by Ward, a sole proprietor,' sustained a small oil

spill; the oil ran into a navigable stream as defined by Con-

gress; Ward reported the spill as required by law; failure

to have reported the spill is a criminal offense; once the

spill was reported, the Coast Guard, pursuant to authority,

imposed a $500.00 fine on Ward based entirely upon facts

that Ward himself had been compelled to report or face

criminal prosecution for failure to report; Ward challenged

the imposition of the fine on the grounds that it violated his

Fifth Amendment rights against self-incrimination; his ad-

ministrative appeals were denied and after exhaustion of

administrative remedies, he resisted the fine in a collection

action in the District Court; the District Court ruled against

him on his constitutional claim, but after jury trial, re-

duced the “civil penalty” to $250.00 because of his prompt

and effective clean-up methods; Ward appealed and the

Court of Appeals reversed, holding that the Government

could not impose a “civil penalty” against Ward on an oil

spill based upon information Ward himself was compelled

to provide; this Court granted certiorari.

An analysis of the penalty phases and schemes of the

Act denominated both civil and criminal is necessary, how-

ever, to understand that beyond any question the pro-

vision involved here is a “criminal penalty” or a “criminal

1. Since a corporation does not have a Fifth Amendment

privilege against self-incrimination, California Bankers Assn. v.

Schultz, 416 U.S. 21, 71 (1974), a corporate owner as operator

of a facility that sustained a spill is not directly affected by the

Court of Appeal’s decision. United States v. Allred Towing Corp.,

578 F.2d 978 (4th Cir. 1978). Most oil spills are from corporate

owners. See Petition for Certiorari, pp. 12-13.

case” for purposes of the Fifth Amendment self-incrimina-

tion clause.

Simply put, the statutory scheme is:

1. Section 311(b) (3) prohibits an oil spill into navi-

gable waters of the United States;

2. Section 311(b) (5) requires the owner or operator

of a facility wherein such a spill has occurred to report

such spill immediately to an appropriate agency of the

United States Government;

3. Failure to report the spill is a criminal offense

punishable by a fine up to $10,000.00 and imprisonment

for one year;

4. No notification received pursuant to Section 311

(b) (5) shall be used against any person in any criminal

case except for a perjury or false statement prosecution;

5. The owner or operator of a facility from which

oil has been discharged shall be assessed a “civil penalty”

by the Government in an amount not to exceed $5,000.00;?

6. In determining the amount of the penalty the Gov-

ernment (Coast Guard) is authorized to take into consid-

eration the size of the business of the owner or operator

charged, the effect on the owner or operator’s ability to

continue in business, and the gravity of the violation (A

39-40) ;

7. The Government is authorized to remove or ar-

range for the removal of any oil discharged into the

navigable waters of the United States unless the Gov-

2. The penalty now may be as high as $50,000.00 under the

provision of the Federal Water Pollution Act of 1978, Pub. L.

No. 95-576, 92 Stat. 2468. The same three factors used by the

Coast Guard to assess the amount of the penalty remain operative.

Additionally, the penalty may be assessed as high as $250,000.00

for willful negligence or misconduct.

ernment is satisfied that the owner-operator of the fa-

cility from which the substance was discharged will prop-

erly do so. The Government’s clear-up costs are paid out

of a special revolving fund established by Section 311(k).

Here, Ward cleaned up the spill, apparently to the satis-

faction of the Government as well as the District Court

below, which reduced his fine by half because of those

efforts;

8. The owner of a facility which sustained a spill is

liable to the Government for the actual costs incurred by

the Government in a clean-up operation except where

the discharge was caused solely by an act of God, war,

negligence on the part of the United States, or an act or

omission of a third party, Section 311(f). Funds re-

covered pursuant to this provision are deposited in the

revolving fund established under 311(k);

9. The owner or operator in all cases remains liable

to third parties for property damage.

Thus, the statutory scheme provides for strict liability

for operators of facilities where an oil spill occurred. The

owner was required to report the spill or face criminal

prosecution for his failure to report. Once he reported

the spill, however, the information he provided would be

used to assess an automatic penalty that was to be as high

as $5,000.00° unless there were mitigating factors.‘ The

payment of the fine, however, does not relieve the opera-

tor’s (a) liability for clean-up costs, (b) liability to property

owners for damage inflicted as a result of the spill, (c)

possible criminal prosecution for the spill.

3. A. 40.

4. The information provided is not “neutral” but definitely

incriminating. Thus, the rule of California v. Byers, 402 U.S. 424

(1971) and United States v. Sullivan, 274 U.S. 259 (1927) is not

applicable.

It is this statutory scheme that Ward believes, and

the Court of Appeals found, makes the imposition of a

“civil penalty” under 311(b)(6) a criminal case for pur-

poses of the Fifth Amendment self-incrimination clause.

SUMMARY OF ARGUMENT

On March 23, 1975, a shut-in natura! gas well-site

operated by Respondent Ward sustained an oil discharge

which, for purposes of this action, must be deemed to

have reached navigable waters of the United States. Ward

reported the spill in accordance with the statutory directive

[33 U.S.C. §1321(b)(5)] to avoid the criminal penalty

there imposed for failure to report an oil spill. Based

solely upon Ward’s report, the Coast Guard, pursuant

to law, assessed a penalty against him of $500.00 for the

spill itself, pursuant to 33 U.S.C. §1321(b) (6) [hereinafter

referred to as §311(b)(6)]. A collection action was com-

menced in the United States District Court after Ward re-

fused to pay, claiming that §311(b)(6) was violative of

the Fifth Amendment to the United States Constitution.

The District Court held against Ward. The Court of Ap-

peals reversed. The Solicitor General petitioned for cer-

tiorari, which this Court granted.

The question presented is whether a proceeding under

the Federal Water Pollution Control Act for the assess-

ment of a “civil penalty” against the individual owner or

operator of a facility, from which oil was discharged in

violation of §311(b)(6), is a “criminal case” within the

meaning of the Self-Incrimination Clause of the Fifth

Amendment to the Constitution, in which the Government

is barred from using any information about the discharge

that the individual is required by the Act to report under

pain of criminal sanctions. At the time of the spill here

the maximum “civil penalty” was $5,000.00. Under present

law the maximum “civil penalty” is $250,000.00.

Respondent’s position is that the imposition of a “civil

penalty” in these proceedings is violative of the Fifth

Amendment Self-Incrimination Clause to the United States

Constitution, in that it requires an owner or operator to

report a spill, and following such report, a mandatory

“civil penalty” is imposed.

Since the English common law, penalties, fines, and

forfeitures have historically been treated as penal or

punitive for purposes of avoiding self-incrimination. The

English common law was that no man could be compelled

to incriminate himself in any action to recover penalties

or fines. During the development of the American colonial

period, we incorporated the body of English common law

into our legal system. The American colonies continued

in the pre-constitutional period the English common law

that the protection against self-incrimination was to be

interpreted broadly and included actions to collect fines,

penalties, and forfeitures as well as traditional criminal

prosecutions. Following the formal adoption of the Self-

Incrimination Clause and the Fifth Amendment, the Amer-

ican State and Federal Courts continued this interpre-

tation.

This English, colonial and post-Fifth Amendment rati-

fication doctrine that penalties, fines, and forfeitures were

criminal cases for purposes of the protection against self-

incrimination was expressly affirmed by this Court in

1886 in Boyd v. United States. It has been reaffirmed

implicitly or explicitly on five occasions since Boyd; Lees

v. United States, Hepner v. United States, United States v.

Regan, Helvering v. Mitchell, and United States v. United

States Coin & Currency.

Ward urges that the Fifth Amendment privilege

against self-incrimination should apply in this case, because

the spill penalty in question is at least “quasi-criminal”

within the meaning of that term as set forth by Boyd and

United States v. United States Coin & Currency, and thus

invokes fundamental individual rights guaranteed by the

Constitution.

Ward recognizes that in actions to collect fines, for-

feitures, and penalties, the proceedings are not a criminal

case for all purposes under the first Ten Amendments to

the United States Constitution. Historically, this Court

and other courts have held that actions to collect fines,

forfeitures, and penalties, though civil in form, are in

reality “criminal proceedings” for the purposes of the

Self-Incrimination Clause of the Fifth Amendment.

The government claims that the self-incrimination

clause applies only if the sanction is punitive, and that

the test to determine whether the sanction is remedial

(thus civil) or punitive (thus criminal) is governed by

the factors enunciated in this Court’s decision in Kennedy

v. Mendoza-Martinez. Ward states that these factors are

not controlling in this case, because (1) the factors were

listed in Kennedy v. Mendoza-Martinez only as dictum

and thus not binding, (2) the factors were not relied upon

in the case where they were developed, and (3) employing

the factors will lead to ambiguous and inconsistent results,

as the history of judicial interpretation of this statute re-

veals.

However, Respondent believes, as the Court of Ap-

peals did below, that even if the seven factors in Kennedy

v. Mendoza-Martinez were applied in the instant case, the

factors would point towards §311(b) (6) as being punitive

or criminal in nature.

This result is reached, in part, because the penalty is

imposed against an owner or operator without regard to

fault or without regard to his clean-up efforts. The precise

same conduct is made a violation of the criminal statutes,

and the Coast Guard Commandant’s Instructions on the

factors which are to be considered in assessing the penalty

clearly indicate a punitive, non-remedial function. For

example, the Coast Guard is instructed to consider such

factors as the gravity of the offense, the prior history of

the alleged offender, and other punitive-type considera-

tions. Those considerations that would indicate a remedial

function such as cost of clean-up or clean-up operations

by the owner or operator are expressly not included as

factors in determining the penalty.

Although monies collected from the assessment of

“civil penalties” go into a revolving fund to help pay clean-

up costs, the owner-operator of the unit causing the spill

still remains liable for those clean-up costs and liable for

damage done to property.

Thus, an examination of the statutory scheme of en-

forcement and the Commandant’s Instructions concerning

enforcement clearly indicates a punitive, non-remedial

function of §311(b)(6). This result is further supported

by the common law tradition and the constitutional doc-

trine enunciated by this Court that actions to collect fines,

penalties, and forfeitures have traditionally been con-

sidered a “criminal case” for purposes of the privilege

against self-incrimination.

Thus, the decision of the Court of Appeals should be

upheld, and no evidence furnished by the owner or opera-

tor pursuant to the statutory requirement of notifying the

Coast Guard of a spill should be introduced into evidence

against him in assessing a penalty under this Act.

ARGUMENT

PROPOSITION I:

PENALTIES, FINES, AND FORFEITURES

HAVE HISTORICALLY BEEN TREATED AS PENAL

OR PUNITIVE FOR PURPOSES OF AVOIDING

SELF-INCRIMINATION:

1. The English Common Law Was That No Man

Could Be Compelled to Incriminate Himself in Any

Action to Recover Penalties or Fines;

2. The American Colonial, Pre-Constitutional Ex-

perience Incorporated in Practice This English Com-

mon Law Tradition and Interpreted the Protection

Against Self-Incrimination Broadly, Including Actions

to Collect Fines, Penalties, and, Forfeitures;

3. Following the Adoption of the Fifth Amend-

ment the American State and Federal Courts Contin-

ued This Interpretation;

4. The English, Colonial and Post Fifth Amend-

ment Ratification Doctrine That Penalties, Fines, and

Forfeitures Were Criminal Cases for Purposes of the

Protection Against Self-Incrimination Was Expressly

Affirmed by This Court in Boyd v. United States, 116

U.S. 616 (1886).° It has been reaffirmed, implicitly

or explicitly, on five (5) occasions since Boyd: Lees v.

United States, Hepner v. United States, United States v.

Regan, Helvering v. Mitchell, and United States v. United

States Coin and Currency.

5. Mr. Justice Brandeis called Boyd, “A case that will be

remembered as long as civil liberty lives in the United States.”

Olmstead v. United States, 277 U.S. 430, 477 (dissenting opinion).

A. Background to English Rule.

The protection against compulsory self-incrimination

is of English origin, despite some attempts by scholars to

attribute it to Continental theory. Yet, it was the methods

of the Inquisition in Europe under Innocent UI that, when

adopted in Britain, gave rise to the maxim, “nemo tenetur

prodere seipso” (no man is bound to accuse himself). The

Inquisition had been instrumental in Europe in diminish-

ing the role of the accusatorial system of legal procedure.

Under the latter system the burden of proof had been on

the accuser, the Church or the Crown, to prove their case

by independent evidence. The Inquisition method, by con-

trast, placed primary emphasis on proving the case by

cross-examination (inquisition) of the accused. The Judge

in essence became both prosecutor and fact-finder, seeking

to establish his case primarily by the accused’s own ad-

missions. Yet, for various reasons, in England the In-

quisition had less force. One, the English common law tra-

dition to a large extent rejected punishment of crimes of

the mind, such as heresy, which had been the prime object

of the Continental Inquisition.‘ Moreover, there was less

widespread religious dissent in England during the 12th

and 13th Centuries than on the Continent, making inquisi-

torial procedures less popular. Most importantly, shortly

before the beginning of the Inquisition in Europe, Henry IT

began initiating procedural reforms in the royal and com-

mon law courts of England. Such reforms as increasing

the role of the jury as fact-finders as opposed to purely wit-

_ 6. Leonard W. Levy, Judgments, Essays on American Con-

stitutional History, (The Right Against Self-Incrimination), p.

269 (Quadrangle Books, Chicago, 1972).

7. While heresy and other religious crimes were prosecuted

in England, such was not generally part of the common law

tradition. Rather, such actions were generally dealt with in

ecclesiastical or other prerogative courts.

nesses, the right of a jury determination of probable cause

before being subjected to stand trial (the Assize), and in-

creasing the public nature of trials, all gave impetus to

making the English system of justice accusatorial rather

than inquisitional. It was within this context that the con-

cept developed in England that in order to prove the case

against an accused, it must be done by evidence independent

of the accused’s own testimony. In fact, in England dur-

ing this time and even in colonial America in subsequent

years, an accused was not even competent to testify in his

case for or against himself since he was an interested party

and hence disqualified.*®

Yet, in the royal and other prerogative courts of Eng-

land, such as the Court of Star Chamber, the inquisitorial

practices more common to the Continent continued to be

used. Such courts were not bound by the common law

tradition, yet possessed jurisdiction over any crime which

they defined as such. It was, though, because of the grow-

ing common law accusatorial tradition that Englishmen

had come to recognize their right not to accuse themselves.

Under Henry II, the system of common law procedure rap-

idly expanded and centralized over the English nation.

When confronted with the inequities of the inquisitional

system in the prerogative courts, Englishmen began to as-

sert their common law right against self-incrimination there

as well. It was, then, in this clash between these dia-

metrically opposed systems that the common law right

against self-incrimination was established and began to

grow to its present dimensions.

As originally understood in England, the right against

self-incrimination was extremely broad. Indeed, the right

8. Levy, ibid., p. 243; and Wigmore, Treatise on Evidence,

I § 575; and William Searle Holdsworth, A History of English Law

(London, 1903-38), IV, 193-196.

was successfully asserted not only in criminal cases, but

also in cases where the Defendant or witnesses’ answers

would subject them to disgrace or self-infamy.® Yet, even

in the context of criminal proceedings only, the right

against self-incrimination was interpreted broadly. Spe-

cifically, from the date of its origin, it had been a corner-

stone of the right that it applied in cases involving penalties

and forfeitures, whether or not they were designated by

the controlling lawmaker as civil or criminal.

B. The English Right Against Self-Incrimination Ex-

tends to Actions for Penalties and Forfeitures.

One of the first statements of this rule is found in

The Trial of Sir Jonathan Freind, State Trials, Volume XIII,

1, at 17 (1696). Sir Jonathan was being tried for high trea-

son. The prosecution attempted to swear in a witness, dur-

ing which Freind interjected the question of whether such

witness was a Roman Catholic or a Protestant. The Court,

although indicating that the witness could answer if he so

desired, admonished him that by doing so he might subject

himself to a penalty because of the illegality of changing

from the Protestant to Catholic faith. The Lord Justices

9. William Tyndale, The Obedience of a Christian Man

(1528), reprinted in Henry Walker, Editor, Doctrinal Treatises

and Introductions to Different Portions of the Holy Scriptures, by

William Tyndale (Cambridge, 1848), p. 355; Doctrine of Thomas

Cartwright and Others, in Albert Peel and Leland H. Carlson,

Editors, Cartwrightiana (London, 1951), pp. 30-46 ff., 38 and

documents about the same date in Thomas Fuller, The Church

History of Britain, J.\S. Brewer, Editor (Oxford, 1845), V, 107-

108; Trial of Nathaniel Reading, State Trials, VII, 259-296-7

(1679); Trial of Peter Cook, State Trials, XIII, 311, 334-5 (1696);

Trial of Jonathan Freind, State Trials, XIII, 1, 17 (1696); East

India Company v. Campbell, 1 Vesey Sr. 246 (1749), Blackstone’s

Commentaries, III, 363, 370. For American cases showing that

the common law right protected against self-infamy, see State v.

Bailly, 2 N.J. 296 (1807); Vaughn v. Perrine, 3 N.J. 299 at 303

(1811); Miller v. Crayon, 2 Brevard (S.C.) 108 (1806); and

People v. Herrick, 13 Johnson (N.Y.) 82 (1816).

caren a

Oo 8 Renee Wes SU Res eT as He

then unanimously held that a witness was not bound to

answer a question which could subject him to a penalty or

prosecution:

Lord Chief Justice: “No man is bound to answer

any question that tends to make him accuse himself

or subject him to any penalties.’ (Emphasis ours)

At 17

Lord Chief Justice Treby: “. ..I am of the same

opinion, that no man is bound to answer any ques-

tions that will subject him to a penalty,....” (Em-

phasis ours) At17

Justice Nevil: “I am of the same opinion, it does

subject him to a penalty; . .. .” (Emphasis ours)

At 17

Justice Rakeby: “I think, it is not a question that

can a right be imposed upon him; he may answer

it if he will; but he is under no obligation to answer

it, because it may tend to accuse himself of a crime

for which he may be prosecuted, and likewise will

subject him to other penalties which the law cannot

compel him to subject himself to.” (Emphasis ours)

At 17-18

In the case of Smith v. Read, 1 Atkyn 526, 529 (1736),

a bill was brought for a forfeiture and a penalty for

the rents and profits of an estate. The Plaintiff’s bill

sought to compel the Defendants to disclose facts which,

if true, would have resulted in the Defendants’ liability

in regards to the forfeiture and penalty in question. In

overruling the Plaintiff’s discovery motion, the court said:

“The law obliges no man to accuse himself, and for

this .. . they cited 2 Cha. Ca. 8. Molings and Mol-

ings, . . . where a disability was held equivalent to

a penalty, or forfeiture... .” At 526

Lord Chancellor “I think the defendant is not bound

to discover, for there is no rule more established in

equity, than that a person shall not be obliged to

discover what will subject him to a penalty, or any-

thing in the nature of a penalty.” (Emphasis added)

At 527

Similarly, in the well-known case of Harrison v. South-

coate, 1 Atkyn 528, 529 (1751), 2 Vesey Sr. 398,

394-95 (1751), the court in ruling upon a similar discovery

request said:

“The rule of law is, that a man shall not be obliged

to discover what may subject him to a penalty, not

what must only (1), and though upon the particular

circumstances of the case, it might not possibly create

a forfeiture, as it does not appear at present with

certainty, whether such a discovery would create a

forfeiture, yet eventually it may do so; and therefore

with regard to so much of the plea as relies upon

the statute of the 11 and 12 Will. 3 it ought to be

allowed... .” (Emphasis ours) At 1 Atkyn 529

In Duncalf v. Blake, 1 Atkyn 52, 53 (1735), the defen-

dant sought to recover on an insurance policy drawn by

the Plaintiff to cover the Defendant’s goods. When the

Plaintiff sought to compel the Defendant to disclose the

nature of his cargo on board, the Defendant refused to

do so on the basis that if he did, his cargo might be

subject to forfeiture under English laws prohibiting the

exportation of wool from Ireland to any port other than

Liverpool. That law provided:

“That none shall directly or indirectly export from

Ireland into any foreign dominion any wool, and all

offenders against this made liable to the forfeiture

of the said wool, and also to the forfeiture of 100

pounds for every offense.” (Emphasis ours) At 53

On the basis of liability to such a forfeiture, the Lord

Chancellor sustained the Defendant’s plea not to answer

in regards to any such goods that might be subject to

the penalty or forfeiture under the act.

In Earl of Suffolk v. Green, 1 Atkyn 450 (1739), the

Plaintiff brought a bill to perpetuate the testimony of

the Defendant, a party to a bond entered into by the

Plaintiff's ancestors. The Plaintiff had charged that the

Defendant witness had been guilty of usury on the bond.

If true, it would have subjected the Defendant to monetary

fines on the basis of such usury. In upholding the Defen-

dant’s demurrer to the Plaintiff's discovery on such a

basis, the Court said:

“As to the first part, that it would subject the De-

fendants to a penalty, the demurrer is proper... .”

(Emphasis ours) At 450

Similarly, in Boteler v. Allington, 3 Atkyn 453, 457

(1746), the Defendant demurred in a similar case on the

basis that the discovery sought would subject him to a

forfeiture anda penalty. In response, the Court ruled:

“..I1 am of the opinion the defendant had a right

to demur, not because of any consequence to the plain-

tiff, for the fact of which he seeks discovery may

very easily be ascertainable by the bishop’s register,

but for the sake of the rule of the Court, that a

defendant is not obliged by a discovery to subject

himself to a forfeiture, or anything in the nature of

a forfeiture.” At 456

“And therefore in all bills to stay waste, a plaintiff

is not entitled to a discovery, unless he waives the

double penalty which is treble damages by the statute

of Gloucester. ...” (Emphasis ours) At 457

The case of East India Company v. Campbell (Exche-

quer), 1 Vesey Sr. 246-47 (1749), is also instructive. In that

case the Attorney general sought to discover how the Defen-

dant came to possess certain goods, to which the Defendant

would not answer on the basis that to do so would subject

him to a fine or corporal punishment; or that if he did

so, he would be liable for penalties based upon Parliamen-

tary acts regulating trade. To such a plea the Court agreed.

Moreover, in Bird v. Hardwicke, 1 Vernon 109 (1682),

the bill charged that the Defendant, in order to raise

the price of his wines and to retard the sale of Plaintiff’s,

caused the Plaintiff’s wines to be seized on the basis that

they were illegal as French imported wines. When the

Plaintiff sued the Defendant to recover his damages, the

Defendant refused to answer any discovery on the basis

that to do so would subject himself to “forfeiture” under

English laws prohibiting his conduct. The Court again

sustained such a position, once again on the basis that

a man is not bound to disclose that which would subject

himself to a penalty or a forfeiture.

Thus, from the beginning, the right against self-incrim-

ination has been applied in cases involving penalties and

forfeitures. To be sure, the English example demonstrates

that it was the threats of fines, penalties, and forfeitures

that provided the bulk of litigation in regards to the right

and was a major impetus in its development.

C. American Colonial Expression Prior to Ratifica-

tion of Self-Incrimination Claims.

1. English common law adopted in colonies.

It was in this tradition that the American common

law evolved. From the outset of colonial America, the

right against self-incrimination was both invoked and up-

held in cases involving penalties, fines, and forfeitures.

Indeed, it is clear that the colonists in America intended

to incorporate the English common law into their system

of law. All of the royal charters in the American colonies

required that the laws of those colonies conform with Eng-

lish law. This necessity originated with the Virginia Char-

ter of 1609 and was continued in the Pennsylvania Charter

of 1681, the Georgia Charter of 1732, the Massachusetts Bay

Charter of 1628-29, and the New York Charter of 1664.'°

This practice seems to have originated with the patent

from Queen Elizabeth to Sir Humphrey Gilbert in 1578"

and took the following form. That patent provided that

Gilbert should have the power to govern the inhabitants

of lands he settled and to exercise his control:

“According to such state lawes and ordynaunces as

shalbe by him (etc.) devysed or established for the

better government of the said peoples as aforesaid to

alwaies that the said statutes lawes and ordynances

maye be as neare as conveniently may agreeable to

the forme of the lawes and pollicies of England.”

The Charter to Sir William Raleigh, Gilbert’s successor,

exemplified almost the identical language,’* as did the

Massachusetts Bay Charter."

The colonists were making a positive effort to both

preserve their English heritage while at the same time com-

mencing their history as independent Americans. Thomas

Jefferson, in a letter to Skelton Jones of July 28, 1809, said

10. J. Goebel, “King’s Law and Local Custom in Seventeenth

Century New England,” in Flaherty, Ed., Essays in the History

of Early American Law (Univ. of North Carolina Press, Chapel

Hill, 1969), p. 83.

11. Chaffee, “Colonial Courts and the Common Law” in

Flaherty, Ed., supra, at 56.

12. Ibid., at 57.

13. Documents of American History, Ed. by Henry Steele

Commager (Appleton-Century-Crofts, N.Y., 1949), p. 7.

14. Ibid., p. 18.

of the Virginia Constitutional Convention’s work, that “we

concluded not to meddle with the common law (by codifi-

cation), ie., the law preceding the existence of the statutes,

further than to accommodate it to our new principles and

circumstances. ...” Indeed, Jefferson seemed convinced

of the need of colonial law to incorporate the common law

and privileges of England. In his letter to Judge John

Tyler of June 17, 1812, this attitude seemed clear:

“I deride with you the ordinary doctrine, that we

brought with us from England, the common law rights

On our arrival here, the question would at once

arise, by what law we govern ourselves? The resolu-

tion seems to have been, by that system which we are

familiar, to be altered by ourselves occasionally, and

adapted to our new situation. The proofs of this res-

olution are to be found in the forum of the oaths of

the Judges, 1 Hening’s Stat. 169, 187; of the Governor,

ibid., 504; in the act for a provisional government, ibid.,

p. 372; in the preamble of the laws of 1661-2; the uni-

form current of opinions and decisions, and in the

several records of all of our statutes framed on that

basis . . .”25

So it seems clear that the colonists attempted to in-

corporate the English common law as a basis for their own.

Yet, they reserved for themselves the room to adapt and

alter the common law of England insofar as it would help

suit their changed conditions in the new world. But as

the cases both preceding and subsequent to the American

Revolution will demonstrate, the right against self-incrim-

ination, as it applied in a proceeding involving the threat of

15. The Writings of Thomas Jefferson, Ed. Andrew A. Lips-

comb (Thomas Jefferson Memorial Association of the United

States, Washington, D.C. 1904), Vol. XIII, p. 7. Quote from letter

to Skelton Jones, Ibid, Vol. XII, p. 299.

a penalty, fine, or forfeiture, was an English common law

right which the colonists would not wish to diminish, but

rather would seek to strengthen and preserve, against not

only encroachments by the English Crown, but when neces-

sary against their own lawfully constituted government.

History amply demonstrates that the right against

self-incrimination was a part of the common law of Eng-

land that the colonies accepted. Moreover, it seems clear

that this right was adopted and evolved in the context of

proceedings involving monetary fines and forfeitures. In-

deed, much of the basis of the American Revolution itself

was centered on the imposition of fines and forfeitures by

the English Crown on commercial enterprises of the Amer-

ican colonists. Similarly, that the founding fathers gave

great impetus to the protection of property rights when

framing the Constitution is beyond historical dispute.’®

2. American colonies extended protection against

self-incrimination to actions for fines, penalties,

and forfeitures.

One of the first instances recorded involving the right

against self-incrimination in America occurred in New

York and involved the very tensions inherent between the

Crown and its subjects that were litigated in the English

common law, and exists today in the case at bar. Specif-

ically, the invocation of the right was in opposition to a

statute imposing a fine on one found illicitly trading.

Since enforcement of previous acts such as the one in

question in that case had proven unsuccessful, the legisla-

ture had adopted an amendment in 1722 that required all

16. See the Federalist Papers No. 10 (Madison); No. 15

(Hamilton) ; No. 25 (Hamilton) ; No. 54 (Madison) ; No. 70 (Hamil-

ton) ; No. 84 (Hamilton) ; No. 85 (Hamilton).

those suspected of violating the act to give an oath that

they had not done so.” If the subject refused, he was

automatically convicted of illicitly trading and fined 100

pounds.

The colonists’ opposition to the statute became focused

on the self-incrimination provision and found expression

in their objections directed tc the Board of Trade. John

Sharp, the London agent for several colonists, argued that

the statute was illegal because the suspect “was by a very

extraordinary oath, made liable either to accuse himself

or to suffer great penalties.” (Emphasis added).'® When

other colonists gave evidence in front of the Board of

Trade in regards to the proposed amendment, they similarly

expressed their belief that it illegally required them to

incriminate themselves. In discussing the act with a fur

trader, John Peloquin, the Board of Trade asked him if

he had ever purchased skins from the French, to which

he replied:

. answering that question might give ill con-

sequences to himself, if it were since the passing of the

said acts; and since he believ’d their Lordships could

not expect Mr. Peloquin should accuse himself.’’®

The Lordships changed the subject immediately, and

subsequently recommended that Governor Burnett be

urged to halt the illegal trade in another manner. The

Board of Trade then pointed out the fatal flaw in the pro-

posed amendment;

17. Leonard Levy, Origins of the Fifth Amendment, (Oxford

Univ. Press, N.Y. 1968), p. 381.

18. Ibid.

19. Ibid.

“There is an oath impos’d upon all traders whereby

they are obliged to accuse themselves or else be under

the greatest temptation to perjury.”

When New York finally enacted their new statute

regulating the fur trade, the objectional provision was

noticeably omitted.

In Massachusetts in 1754, the right again drew signif-

icant attention and recognition. That year the legislature

enacted a new liquor excise tax, requiring purchasers to

report to tax collectors, on oath if necessary, the amount of

money they expended on liquor that year. Opposition to

such a bill was formidable and widespread due to its in-

criminating oath. John Lovell, a Boston schoolmaster who

had once taught John Hancock and Samuel Adams, de-

scribed the bill as “the most pernicious Attack upon En-

glish Liberty that was ever attempted” and would if al-

lowed enslave the country.

Samuel Cooper, minister of the Brattle Church was

even more precise in his attack on the oath. If one had to

account as to his innocent conduct in this manner, which

he felt was extortion, “every other Part may with equal

Reason be required, and a Political Inquisition severe as

that in Catholic Countries may inspect and countroul every

Step of his private Conduct.” He continued:

“But will anyone presume to say, that this will be no

Diminution of our Liberties, if it be in a central part

of our Constitution, that no Man is held to convict

himself in any Affair where he is accus’d. And who-

ever will undertake to prove, that a Man can con-

sistent with the Constitution, be obligid to clear

20. Ibid.

21. Ibid., p. 386.

22. Ibid.

himself of an innocent Action by Oath, or forfeit an

heavily Penalty, may a fortiori prove, that this prac-

tice is defendable in Criminal Cases.’’

Such opposition bore fruit, as Governor William

Shirley refused to sign the bill on the basis that it was

an unprecedented violation of “natural rights”.

The privilege against self-incrimination repeatedly

arose in connection with writs of assistance and their use

in proceedings for penalties and forfeitures against colonial

shippers. The writ allowed customs officials to search ships

for goods allegedly shipped into colonial ports in violation

of revenue acts or other acts regulating colonial trade. On

the basis of evidence found, the Government could then

instigate suits for penalties and forfeitures in the courts

of Vice Admiralty. Such courts were governed by civil

law rather than the common law tradition. Trials were

held in secret, without the need of grand jury indictment

and without the aid of common law principles. One of

the common law protections most conspicuously lacking

and which the Americans particularly deplored was the

absence of tiie privilege against self-incrimination.

Henry Laurens, a South Carolina planter-merchant,

was an unwilling participant in this system. In particu-

lar, he levelled his criticisms against the admiralty judge’s

abridgment of the right against self-incrimination. The

injustice of Laurens’ situation became well-known and

furthered colonial opposition to procedures which subjected

colonists to fines and forfeitures without the right against

self-incrimination. Laurens himself quoted Lord Bacon

against the practice, “whereby Men are inforced to accuse

themselves . . . (when punishment or) ‘grievous Incon-

23. Ibid.

24. Ibid.

veniences’” might be the consequence of confessing the

truth. Specifically, the “grievous” consequence in ques-

tion was an imposition of a fine and a penalty.”

When John Hancock fell victim to the same _pro-

cedural injustice in Boston in 1768, popular opinion reached

a groundswell in opposition to such practices. Boston’s

A Journal of the Times, in condemning the fine and for-

feiture of citizens’ property without the protection of the

right against self-incrimination, condemned such practices

as “Star Chamber Proceedings” using the “Inquistorial’’

tactics of examining citizens secretly and by “odious” in-

terrogatories, in the hope that evidence could be “fished

up” to sustain the prosecution. The Journal noted, in

making reference to both the Laurens and Hancock cases,

whether the Court might not next “put parties or wit-

nesses to the torture and extend them on the rack.’** Yet

despite such public outcry against such self-incriminatory

practices, the Philadelphia Customs Office in 1770 sought

to question by oath every officer and seaman suspected of

smuggling tea into the port. But Attorney General Andrew

Allen, correctly sensing the colonial dedication to the prin-

ciple of no self-incrimination, informed the collector of

the port:

“I am very clear in opinion that the Court of Ad-

miralty cannot with propriety oblige any persons to an-

swer interrogatories which may have a tendency to

criminate themselves or subject them to a penalty,

it being contrary to any principle of Reason and the

Laws of England.” (Emphasis ours) *"

Indeed, at least seven of the early State Constitutions

and Declarations of Rights contained provisions against

25. Ibid., p. 398.

26. Ibid., p. 399.

27. Ibid., p. 399.

self-incrimination. Moreover, the wording of mary of

them was extremely broad, not being limited to criminal

prosecutions at all. For example, the Delaware Declara-

tion of Rights of 1776 provided:

“Section 15: ‘That no man in the Courts of Common

Law ought to be compelled to give evidence against

himself’.”**

Such provision was distinguished from other more tra-

ditional criminal guarantees such as the right to counsel,

a speedy trial, confrontation, and so on, which were located

in separate provisions of the Declaration of Rights (Section

14). By framing the self-incrimination clause broadly, the

drafters of such constitutions intended to make clear that

the privilege applied in cases such as penalties and for-

feitures, regardless of their designation as criminal or civil.

Maryland’s Declaration of Rights took a similar approach:

XX. “That no man ought to be compelled to give

evidence against himself, in a common court of law,

or in any other court... .”*°

As with Delaware, this provision was separated from

those other traditionally criminal guarantees included in

the Constitution, the latter being enumerated in Section

XIX.

When James Madison first introduced the self-incrim-

ination clause to Congress, he proposed the broad principle

that, “no person . . . shall be compelled to be a witness

against himself.’”*° His wording, as with the State Consti-

tutions previously noted, was intended to secure and in-

28. The Bill of Rights, A ery History, Bernard

Schwartz, (Chelsea House, N.Y., 1971), Vol. I, p. 278.

29. Ibid., p. 282.

30. Levy, Origin of Fifth, p. 423.

corporate into the Constitution the full scope of the com-

mon law right against self-incrimination.*t Although

many of the self-incrimination cases involving fines and

forfeitures were designated as criminal already, Madison’s

draft went even a step further in securing this right,

regardless of how the fine or forfeiture was classified,

or regardless of the nature of the proceeding in which

it arose.

Madison’s wording was objected to by John Laurance,

a Federalist lawyer from New York. Laurance felt that

the provisions should be designated as referring to “crim-

inal cases” only. His reasoning was that to do otherwise

would make the amendment “in some degree contrary

to laws passed.”** What historians believe Laurance was

referring to was Section 15 of the Judiciary Act of 1789.

That Section, in the original draft, empowered the federal

courts to compel civil parties to produce books and papers

containing real evidence. It also allowed a party in a

civil case to be examined under oath. In other words,

Section 15 merely was one of the first discovery provisions

in federal legal history. Apparently Laurance felt that

the way Madison had framed the self-incrimination clause

would jeopardize these discovery provisions of the Judi-

ciary Act. Remarkably, Laurance’s suggested change was

accepted by Madison and the Committee of the Whole,

and in the entire House with little debate. In light of

the tremendous opposition to the use of self-incriminatory

methods in cases involving forfeitures and penalties, as

we have seen, and the role of this grievance in the Amer-

ican Revolution in general, one can only conclude that

the framers felt that even by leaving the wording “crim-

inal” in the self-incrimination clause, that the protection

31. Ibid., p. 423.

32. Ibid., p. 424.

would still extend to fines and forfeitures, regardless of

their characterization by the legislature.

3. Post ratification proceedings treat actions to

collect fines, forfeitures and penalties as ‘“‘crim-

inal cases’’ for purposes of the privilege against

self-incrimination.

The entire case precedent subsequent to the ratification

of the American Constitution also supports such a rationale.

In Taney v. Kemp, 4 Harris and Johnson 348 (Md. 1818),

the Court decided whether a witness was bound to answer

the question touching on an issue which would subject

him to criminal prosecution or a penalty. Though ruling

that civil liability in itself was not necessarily a ground

for not answering, the Court was unequivocal that being

subject to a criminal prosecution or a penalty was

“It is well established, that a witness shall not be

obliged to answer questions which may subject him

to criminal prosecution; or to a penalty, or to a for-

feiture.” (Emphasis ours) At 350

Similarly, in Johnson v. Goss, 10 Tenn. (2 Yerg) 110

(1825), the Supreme Court of Tennessee ruled that a wit-

ness could not be compelled to answer in such circum-

stances. Johnson sued Goss for seducing his daughter,

and when the daughter was cross-examined as to her chas-

tity, an objection was taken. The Supreme Court upheld

that objection on the basis that:

“The law is, that ‘a witness shall not be compelled

to answer any question which subjects him to penalties

or punishment, or to a criminal charge.’ ” (Emphasis

ours) At 110

In People v. Rector, 19 Wend. 569 (N.Y. 1838), the

Supreme Court of New York also decided whether the

self-incrimination clause protected a witness from answer-

ing a question that would subject him to a penalty. They

answered that it would:

“The authorities to this are well summed up in Ros-

coe’s Cr. Ev. Phila. ed. of 1836, pp. 133, 4, 5; but

need not be here examined. I will only observe that

the practice of compelling the answer where there

is no penalty seems to be gaining ground by the mod-

ern cases .... But he excused the witness because

the offense was more than a mere moral one; it would

subject her to a penalty.” (Emphasis added) At 581-

582

In Lister v. Boker, 6 Blackf. 439 (Ind. 1843), the

Indiana Supreme Court again specifically ruled on

whether the self-incrimination protection applied to cases

involving penalties and forfeitures. This case involved

an assumpsit by Boker against Lister, based upon a promis-

sory note. At the trial, Wood, the assignee of Lister,

was called as a witness for the Defendant and asked what

consideration he had given for the promissory note. The

Court then interrupted and informed Wood that if the

consideration given was small bills, issued by himself for

the purpose of being used as circulating medium, he could

be subjecting himself to penalties and forfeitures by an-

swering. An Indiana Act of 1840 prohibited the circula-

tion and issuing of small bills made by individuals or

corporations for the purpose of passing as circulating me-

dium. As punishment, the statute had provided for each

offense a forfeiture of the bills and a penalty of double

the amount of each bill so issued, to be recovered in

an action on debt. Indeed, such an action was not a

criminal prosecution per se. Yet the Court ruled that

the witness was not bound to answer such an inquiry

because:

“A witness is not bound to answer any question, if

his answer will expose him to criminal punishment,

or a penal liability. 1 Stark. Ev. 191- Dandridge v.

Corden, 3 Carr and Payne 11 - (other cases cited) .”

(Emphasis added) At 440-41

Also instructive on this point is the Virginia Supreme

Court case of Poindexter v. Davis, 6 Grat. 481 (Va. 1850).

The Plaintiff Davis sued in detinue for the recovery of

a slave sold by Steven Terry. Terry had purchased but

a life estate in the slave from Davis, yet had sold it

to Poindexter, the latter believing he purchased an absolute

interest in the slave. At trial, the Plaintiff had prepared

interrogatories calling on the Defendant to say whether

or not he had purchased the slave from Terry. The

Defendant answered them, and the Plaintiffs offered such

evidence at trial, but the Defendant objected to their an-

swers on the grounds that the Plaintiffs were seeking to

enforce a forfeiture. The trial court overruled their objec-

tion, but on appeal the Defendant prevailed. The Court,

in ruling that the Defendant was not bound to answer,

demonstrated the strength of the American prohibition

against self-incrimination in cases involving penalties and

forfeitures:

“In the last respect, indeed, it conforms to the spirit

of the common law which, jealous of the liberty of the

citizen, protects him from being made his own accuser,

or forced to give evidence against himself.” At 490

Or, as the Appellant’s brief put it, quoting Story’s

Equ. Pl. §579:

“... it is well settled that a defendant will not be re-

quired to answer a bill of discovery, where his answer

will subject him to a penalty or forfeiture... .” At

486

In another case involving a fine, yet not specifically

classified as criminal, the Supreme Court of Georgia ruled

that the self-incrimination guarantee indeed came into

play. In Bryan v. State, 40 Ga. 688 (Ga. 1870), two de-

fendants were required to appear before the Superior

Court and show cause why they should not be fined for

neglect of their duties as County Commissioners. The De-

fendants contended that the proceeding was criminal and

they were not bound to testify against themselves. They

were overruled by the trial court and fined $50.00. But

on appeal, the court reversed, saying:

“It has been from time immemorial a settled principle

of the common law, that no one shall be compelled to

answer any question as a witness, tending to criminate

himself or subject him to a fine or forfeiture, or any

criminal charge: 1 Greenleaf Ev., pp. 620-21. Our

evidence act ... The words used are: ‘No person shall

be compelled to answer any questions tending to crim-

inate himself or herself.’ ”

“It is true that this is not exactly a criminal case, yet,

it closely analogizes itself to such cases. .. .” (Emphasis

added) At 689

The Virginia case of Langhorne v. Commonwealth, 76

Va. 1912 (Va. 1882), also clearly illustrates the point.

That case involved an indictment against William Henry

Terry Langhorne for the burning of a tobacco factory. In

attempting to discredit a witness on the basis that he had

procured the execution of a deed based upon a false pre-

tense, the Court ruled that the witness was not bound to

answer such an inquiry. The Court said, in quoting 2

Taylor Ev. §1453:

“Where the answers would have a tendency to ex-

pose the witness, or, as it seems, the husband or wife

of the witness, to any kind of criminal charge, whether

in the common law or ecclesiastical courts, or to a

penalty or forfeiture of any nature whatsoever, the

witness is not compellable to answer. This rule, which

is of great antiquity (he says), applies equally to

parties and to witnesses, and is now uniformly recog-

nized by all British tribunals, whether civil or crim-

inal. No party can be compelled to discover that

which, if answered, would tend to subject him to any

punishment, penalty, forfeiture, or ecclesiastical cen-

sure, however material the answer may be to his ad-

versary’s case .... This doctrine prevails in the

spiritual courts and is part and parcel of the law of

Scotland.’ And it is the law of America. Greenleaf

says: “The authorities are exceedingly clear that the

witness is not bound to answer.’ 1 Green L. Ev. § 451.”

(Emphasis theirs) At 1021

“Numerous authorities might be cited which clearly

establish that if the fact to which the witness is inter-

rogated forms but a single remote link in the chain of

testimony, which may implicate him in a crime or

misdemeanor, or expose him to a penalty or forfeiture,

he is not bound to answer... .” (Emphasis ours)

At 1022

In the case of Masseth v. Johnson, (C.C.) 59 Fed. 613

(1894), the Court adhered to the common law rule herein

discussed. That case involved a bill in equity for the ac-

counting for an alleged infringement of a patent. The

vendor of the device alleged to be infringing the patent,

who was not a party to the suit, was compelled to testify

to the purchase and use of the patented item by the de-

fendant. The Court held that he could be so compelled

without violating the Constitutional provision that no wit-

ness should be compelled to testify against himself in a

criminal case. The basis of such ruling was that the

statute in question did not subject the infringer to penalties

or forfeitures but only authorized the Court to impose civil

damages for such actions. They said:

“It is contended that Palm cannot be compelled to give

evidence on behalf of complainant, because thereby he

may subject himself to penalties and forfeitures here-

after in accounting with the present complainant... .

(W)e do not regard Rev. Sp. §§4919, 4921, as subjecting

him hereafter to penalties and forfeitures.... (t)hey

simply empower the court, in its discretion, and ‘ac-

cording to the circumstances of the case’, to impose ad-

ditional damages against the infringer.... The calling

of Paim to testify was a violation neither in letter nor

spirit of the constitutional provision (see Amendment

5) that ‘no person .. . shall be compelled in any crim-

inal case to be a witness against himself.” At 614-15

Perhaps Henry Campbell Black’s treatise on Con-

stitutional Law (St. Paul, Minnesota: West Publishing Co.,

p. 574) in 1897 put it best when he said:

“The guarantee (the self-incrimination clause) does

not create any new right, but merely reaffirms a com-

mon law privilege. It is directed against the extrac-

tion of confessions . . . and against the inquisitorial

method of trial. The seizure or compulsory production

of a man’s private books or papers, to be used in evi-

dence against him, is equivalent to compelling him to

be a witness against himself, and in a prosecution for

a crime, penalty, or forfeiture, is equally within the

constitutional prohibition.” At 574

4. In Boyd v. United States and subsequent cases

this court held that a civil action to collect

fines, penalties, or forfeitures was a “criminal

case’”’ for purposes of the Fifth Amendment

self-incrimination clause.

In Boyd, a forfeiture proceeding under the customs

revenue laws, the United States claimed that Boyd and

Sons, a partnership, had fraudulently evaded paying taxes

on thirty-five cartons of imported plate glass. The stat-

utory penalty for fraudulent non-payment of the tariff

was forfeiture of the goods involved. Accordingly, the

Government seized the glass and instituted forfeiture pro-

ceedings against it. During this proceeding, the Govern-

ment obtained a court order directing that Boyd and Sons

produce an invoice that allegedly contained proof that

they had in fact violated the tax statute.

The statute pursuant to which the order was issued

proved that failure to comply with the order would be

treated as a confession of the allegations set forth in the

Government’s petition. The Boyds complied under pro-

test, arguing that both the order and the statute authoriz-

ing it were unconstitutional and in derogation of the

Fifth Amendment guarantees against self-incrimination.

This Court unanimously agreed with this contention. Be-

cause of the penalty for non-compliance, the Court held

that the statute violated the Fifth Amendment right against

self-incrimination:

“We are also clearly of the opinion that proceedings

instituted for the purpose of declaring the forfeiture

of a man’s property by reason of offenses committed

by him, though they may be civil in form, are in

their nature criminal ....

“As therefore, suits for penalties and forfeitures, in-

curred by the commission of offenses against the law,

are of this quasi-criminal nature, we think that they

are within the reason of criminal proceedings for all

purposes of the Fourth Amendment of the Constitu-

tion, and of that portion of the Fifth Amendment which

declares that no person shall be compelled in any

criminal case to be a witness against himself; . . .”

At 634-635

In reaching this conclusion the Court examined in

detail the English common law experience with self-

incrimination and post Civil War congressional enactments

providing for the protection of the privilege against self-

incrimination in suits to collect penalties and forfeitures,

though civil in form. The Court paid especially close at-

tention to the actions of the First Congress in proposing the

self-incrimination clause in what became the Fifth Amend-

ment;

“The views of the first Congress on the question of

compelling a man to produce evidence against himself

may be inferred from a remarkable section of the

Judiciary Act of 1789. The fifteenth section of that

Act ...as originally enacted is as follows:

‘All the said courts of the United States shall

have power in the trial of actions at law, on mo-

tion and due notice thereof being given, to re-

quire the parties to produce books or writings

in the possession or power, which contain evi-

dence pertinent to the issues, in cases and under

circumstances where they might be compelled to

produce the same by the ordinary rules of proceed-

ing in chancery; and if a plaintiff shall fail to

comply with such order (to produce books) it

shall be lawful . . . to give judgment for the de-

fendant....’” At 630-631

The Court found from adoption of this section an

intent by the Congress to give the widest possible applica-

tion of the protection against self-incrimination, stating,

“Now it is elementary knowledge that one cardinal

rule of the court of chancery is never to decree a

discovery which might tend to convict the party of

a crime or forfeit his property... .” At 631

The Court concluded that even though the statute

in question in Boyd and the form of the action to collect

the penalty was expressly not designated criminal by Con-

gress, still, for purposes of the Fifth Amendment self-

incrimination clause, they were in fact quasi-criminal and

Boyd and Sons could not be compelled to incriminate

themselves in an action to collect a forfeiture. At 634-

Seven years later in Lees v. United States, 150 U.S.

474 (1893) this Court expressly reaffirmed without dissent

the doctrine of Boyd insofar as it relates to the self-

incrimination cluase in actions to collect fines or penalties.

In Lees, the United States sought through a civil action

to collect a forfeiture (in realty, a penalty) of $1,000.00

for a civil violation of an act prohibiting the importation

of aliens under contract to perform certain labor in the

United States (23 Stat. at 332). At the trial, Lees was

called as a witness by the Government. He objected to

testifying on the grounds of the privilege against self-

incrimination. His objection was overruled. This Court

held:

“This, though an action civil in form, is unquestionably

criminal in its nature, and in such a case the defendant

cannot be compelled to be a witness against himself.

It is unnecessary to do more than refer to the case

of Boyd v. United States (citation omitted) ... .”

At 430

In Hepner v. United States, 213 U.S. 103 (1909) a

monetary penalty imposed for violation of the immigration

laws was deemed a civil action in which the rules of

civil procedure applied generally and the Government was

held to be entitled to a directed verdict. Hepner had

complained that the action was in reality a criminal prose-

cution, citing Boyd and Lees, and arguing that, as such,

the Government was not entitled to receive a directed

verdict in a criminal case. Mr. Justice Harlan, speaking

for the Court, with only one dissent, addressed this issue:

“This view cannot be sustained. That case was a

civil action to recover a penalty for importing an alien

into the United States. ... In that case (Lees) the

trial court compelled one of the defendants to testify

for the United States and furnish evidence against

himself. This Court held that that could not be done;

saying that ‘this, though an action civil in form, is

unquestionably criminal in its nature, and in such

a case a defendant cannot be compelled to be a witness

against himself,’ meaning thereby the use of deposi-

tions.... In the latter case (Boyd) it was adjudged

that penalties and forfeitures incurred by the commis-

sion of offenses against the law are of such a quasi-

criminal nature that they come within the reason of

criminal proceedings . . . of that part of the Fifth

Amendment declaring that no person shall be com-

pelled in any criminal case to be a witness against

himself.

“So that the Lees and Boyd cases do not modify or

disturb but recognize, the general rule that penalties

may be recovered by civil actions, although such ac-

tions may be so far criminal in their nature that the

defendant cannot be compelled to testify against him-

self in such actions in respect to any matters involv-

ing, or that may involve, his being guilty of a criminal

offense.” At 111-112

In United States v. Regan, 232 U.S. 37 (1914), Boyd

was again reaffirmed without dissent. A $1,000.00 penalty

had been imposed for violation of the immigration laws.

Regan argued that the action against him, though civil

in form, was in reality criminal and that the Government

must prove its case beyond a reasonable doubt, the standard

of proof in a criminal prosecution. This Court disagreed,

but distinguished an evidentiary rule from the constitu-

tional protection against self-incrimination.

Mr. Justice VanDevanter, dismissed the Regan conten-

tion that Boyd and Lees governed his case. The right

was distinguishable, and Boyd and Lees were

. without present application, for they deal with

guaranty in the Fifth Amendment to the Constitution

against compulsory self incrimination, which as this

court has held, embraces proceedings to enforce penal-

ties and forfeitures as well as criminal prosecutions,

and is of broader scope than are the guaranties in

Article III and the Sixth Amendment governing trials

in criminal prosecutions (omitting citations).” At 50

In Helvering v. Mitchell, 303 U.S. 391 (1938) the issue

was whether an acquittal on a criminal indictment for

tax evasion was a bar to a “civil” action by the govern-

ment to collect a fifty (50) percent “civil fraud” penalty.

The Court held that the Fifth Amendment double jeopardy

clause did not prevent the assessment or collection of the

penalty, for the penalty was regulatory, tax raising, not

punitive. Mr. Justice Brandeis, speaking for the Court, .

distinguished, however, the self-incrimination clause of the

same amendment. We believe this analysis and reasoning

makes explicit what the earlier intervening cases since

Boyd made only implicit:

“The distinctions here taken between sanctions that

are remedial and those that are punitive has not gen-

erally been specifically enunciated. In determining

whether particular rules of criminal procedure are

applicable to civil actions to enforce sanctions, cases

have usually attempted to distinguish between the

type of procedural rule involved than the kind of

sanction being enforced (citatjons“omitted).” At 400,

fn.3

He then distinguished the cases permitting a directed

verdict in actions to collect civil penalties and the holdings

that the Government need not prove its case in such actions

beyond a reasonable doubt with those situations where

a claim of the protection against self-incrimination occurred

in the same actions. He expressly cited Boyd and Lees

and the language from Regan, “. . . the guaranty in the

Fifth Amendment to the Constitution against compulsory

incrimination . . . is of broader scope than are the guaran-

ties in Article III, and the Sixth Amendment governing

trials in criminal prosecutions.” 232 U.S. 50 at 400, fn.3

In United States v. United States Coin and Currency,

401 U.S. 715 (1971) the Boyd doctrine was reaffirmed.

This Court ruled that the privilege against self-incrimina-

tion could properly be invoked in forfeiture proceedings

involving money which the Government had seized from

a person’s possession at the time of his arrest for violation

of federal gambling registration and tax statutes. In lan-

guage that is very applicable to the present statutory

scheme, this Court, speaking through Mr. Justice Harlan,

declared it had no doubts that Congress possessed the

power to authorize collection of taxes on unlawful gambling

activities.

“It was only the method Congress had adopted in

collecting the tax that raised the Fifth Amendment

question.” At 717

Similarly, here there can be no question of the power

of Congress to prevent oil spills and discharges, but it is

the method Congress has chosen that raises the Fifth

Amendment question.

In One Lot, as here, “. . . the Government urges that

the present forfeiture should not be considered the re-

sult of a ‘criminal’ proceeding for the Fifth Amendment

purposes.” At 719. Invoking the doctrine of Boyd and

its progeny, the Court held the forfeiture proceedings to

be a “criminal case” within the meaning of the Fifth

Amendment self-incrimination clause. In holding that the

forfeiture proceeding was invalid, this Court was essen-

tially stating only that the civil penalty could not be im-

posed in a manner inconsistent with the Fifth Amendment

right against self-incrimination.

Ward asserts, based on the analysis of decisions since

Boyd, that the penalty imposed upon him here is “quasi-

criminal” and therefore invokes certain fundamental con-

stitutional guarantees normally accorded criminal defen-

dants, even though such a penalty does not invoke the full

panoply of individual rights which a criminal penalty

would trigger.

One such fundamental right invoked by a quasi-crim-

inal penalty is the privilege against compelled self-incrim-

ination.

The common law tradition which afforded a broad

and liberal application of the self-incrimination privilege

is equally a part of our constitutional heritage. The Fifth

Amendment self-incrimination privilege has been afforded

a liberal construction. See, e.g., Miranda v. Arizona, 384

U.S. 436 (1966); Ullmann v. United States, 350 U.S. 422

(1956); Hoffman v. United States, 341 U.S. 479 (1951);

Helvering v. Mitchell, 303 U.S. 391, 400 n. 3 (1938); Boyd

v. United States, 116 U.S. 616 ( 1886); Lees v. United States.

150 U.S. 476 (1893); United States v. United States Coin

and Currency, 401 U.S. 715 (1971); Murphy v. Waterfront

Commission, 378 U.S. 52 (1964).

The Boyd case is the root of a doctrine reaffirmed as

recently as 1971 in United States v. United States Coin and

Currency, supra, which acknowledges that even where

purely civil penalties are involved, some of the constitu-

tional protections afforded criminal defendants are ap-

plicable.

Certainly an oil spill, prohibited by 33 U.S.C. §1326

(b) (3), is an “offense against the law” by the very words

used in 33 U.S.C. §1326(b) (6):

“ec

. - operator of any ... facility . . . from which oil

. is discharged in violation of paragraph (3)...

shall be assessed a civil penalty . . . for each offense

* * *” (Emphasis added)

Such language seems to clearly indicate a “penalty ...

incurred by the commission of (an offense) against the

law” in the words of Boyd.

The Government in its Brief (p. 49) argues that Boyd,

Lees, and Coin and Currency “do not stand for the propo-

sition that monetary penalties that are plainly civil in

character should nevertheless be regarded as criminal in

order to further the ‘policies’ of the Fifth Amendment.”

It is difficult to reconcile that statement with the plain

language of the cases themselves, or Mr. Justice Brandeis’

opinion in Helvering, supra, at 400 fn.3. Indeed the Gov-

ernment’s attempted distinction has been rejected both

by the Tenth Circuit, Bramble v. Richardson, 498 F.2d 968

(1974), and legal scholars who have studied the problem

at some length: See, Charney, Johathan I., “The Need for

Constitutional Protections for Defendants in Civil Penalty

Cases,” 59 Corn. L. Rev. 478, 503, 515 (1974); Clark, J.

Morris, ‘‘Civil and Criminal Penalties and Forfeitures: A

Framework for Constitutional Analysis”, 60 Min. L. Rev.

379, 392, et seq.; Comment, “‘Compelled Self-Disclosure and

Civil Penalties: The Limits of Corporate Immunity in Oil

Spill Cases, 55 Boston University Law Review 112, 131

(1975)”; Note, “The Concept of Punitive Legislation and

the Sixth Amendment,” 32 U. Chi. L. Rev. 290, 291 (1965).

Assuming, however, the Government is correct in its

analysis of the issue, its application to the statutory scheme

here fails. The Government claims that Boyd reached its

result because “The Government filed an information for

forfeiture of certain goods, but did not file a criminal

charge .... (T)he Court premised its holding on the

specific finding that the forfeiture of goods was one of the

‘penalties affixed to the criminal acts’ prohibited by the

statute” (p. 50). Leaving aside for the moment that this

statement utterly fails to take into consideration the four

(4) paragraphs immediately preceding the statement

quoted (Boyd, 632-4), the same test applied here would

make 311(b) (6) a criminal penalty. Ward submits that

from the relevant constitutional standpoint, there is no dif-

ference between an oil operator who pays a $250.00 civil

fine and an oil operator who pays a $250.00 criminal fine,

either of which could be imposed for the same course of

conduct. A discharge of oil into the navigable waters of

the United States was, and still is, punishable as a criminal

offense pursuant to the Rivers and Harbors Appropriation

Act of 1899 (1899 Refuse Act), 33 U.S.C. $411. See United

States v. White Fuel Corp., 498 F.2d 619 (1st Cir. 1974),

where the Refuse Act criminal penalty was imposed for an

oil seepage, and in which the Court specifically held that

the Government was not required to prove common law

mens rea; to the same effect, see United States v. Inter-

lake Steel Corp., 297 F.Supp. 912 (D.C. Ill. 1969), a crim-

inal prosecution under the 1899 Refuse Act for a discharge

of iron particles and an oily substance; see also United

States v. U.S. Steel Corp., 328 F.Supp. 354 (D.C. Ind.

1970). It is clear from the foregoing cases that a dis-

charge of oil into navigable waters may subject one to a

criminal penalty under the 1899 Refuse Act, even without

any showing of intent, or scienter, or common law mens

rea.

In fact, prior to the enactment of the Water Quality

Improvement Act of 1970, the only remedy against Ward

for this particular oil spill would have been a criminal

penalty under the 1899 Refuse Act. A comparison of the

prohibitory clauses of the 1899 Refuse Act and the Federal

Water Pollution Control Act Amendments of 1972 reveals

little difference. The 1899 Refuse Act, as codified at 33

U.S.C.A. § 407, provides inter alia:

“It shall not be lawful to throw, discharge, or deposit,

or cause, suffer, or procure to be thrown, discharged,

or deposited . . . from the shore, wharf, manufacturing

establishment, or mill of any kind, any refuse matter

of any kind or description whatever [other than sew-

age] . . . into any navigable water of the United

States, or into any tributary of any navigable water

from which the same shall float or be washed into

such navigable water... .”

From the Federal Water Pollution Control Act Amend-

ments of 1972, as codified at 33 U.S.C.A. §$1321(b) (3)

and (6):

“(3) The discharge of oil or hazardous substances

into or upon the navigable waters of the United States

... in harmful quantities as determined by the Presi-

dent ... is prohibited... .”

* x *

“(6) Any owner or operator of any vessel, on-shore

facility or off-shore facility from which oil . . . is

discharged in violation of paragraph (3) of this sub-

section shall be assessed a civil penalty. ...”

* * *

Clearly, the only essential difference between these two

provisions is the nature of the penalty prescribed. The

course of conduct is identical, and the language of the

prohibition, while not in haec verba is 80 essentially the

same in meaning as to be indistinguishable; the only differ-

ence is that the Refuse Act specifically provides that if

the oil spiller is charged under its provisions, and pays

a fine, it will be a criminal fine, whereas if the oil spiller

is charged under the provisions of the Federal Water Pollu-

tion Control Act Amendment of 1972, the Congress can

compel an oil spiller to report himself and be fined “civilly”

and thus effectively free the Government from the re-

straints imposed by honoring the Fifth Amendment guar-

antee against self-incrimination afforded to citizens.

Thus, when the Government claims (p. 52) that “in

the cases upon which Respondent (Ward) relied in the

Court of Appeals, the monetary penalty or forfeiture was

dependent on the occurrence of an integrally related crim-

inal offense, and was, in actuality, but a form of punish-

ment for the commission of that offense,” it has described

precisely and exactly the situation here because the same

act that gave rise to the “civil penalty” also could have

been used to prosecute a criminal action, without further

evidence of intent. Ward could have been prosecuted crim-

inally or proceeded against civilly and the same is true

for Boyd and Sons, John Lees,** and Donald J. Angelini

(Coin and Currency), who in fact was prosecuted by indict-

ment. Coin and Currency, supra, at 716.

When the Government claims that Section 311(b) (3)

“contains no criminal sanctions” (p. 53), it is neglecting

to point out that 311(b)(3) is the companion sanction

to the Refuse Act. Contrary to the Government's argu-

ment, this statutory scheme is clearly dissimilar from the

holding in Helvering where, the Government claims (p.

53), the Court “there observed that where the monetary

penalty or forfeiture is remedial, the defendant does not

have the protection of a number of. procedural rights nor-

mally associated with the criminal process, including the

Fifth Amendment privilege against self-incrimination.”

However, Helvering did not discuss whether this would

be true when there was a compelled self-incrimination

under a threat of a criminal fine and imprisonment if

the disclosure was not made, and a penalty up to $5,000.00

(now $50,000.00 and in some instances $250,000.00) if dis-

closure was made, without regard to fault, and there was

an identical criminal provision. Obviously such a penalty

would no longer be truly “remedial” or “regulatory” as

Helvering intended.

The Government’s Brief at pages 51-53 cites United

States v. Regan, 232 U.S. 37 (1914); Hepner v. United

States, 213 U.S. 103 (1909); One Lot Emerald Cut Stones

v. United States, 409 U.S. 232 as standing for the proposi-

tion that there must be a “direct nexus to an underlying

criminal offense.” (Brief in Chief, page 53). The Govern-

ment also relies upon dicta in Helvering v. Mitchell, supra,

that neither the holding of Boyd nor that in Lees would

33. This same refutation applies to the Government’s efforts

to distinguish Lees at p. 51 in its brief, for the same conduct

there could have been a criminal or civil offense. Indeed, the

statute referred to the act as an “offense” as does 311(b) (6).

necessitate the invocation of certain procedural rights asso-

ciated with the criminal process where the sanction in-

volved is remedial, rather than punitive.

The essential difficulty witn the dicta in Helvering

v. Mitchell, supra, is that it does not comport with the

decisions of this court. Boyd was a limited decision, limited

to protection and assertion of the Fifth Amendment self-

incrimination privilege and the rights guaranteed by the

Fourth Amendment. No other criminal procedural rights

were invoked in Boyd; nor have they been subsequently

in civil penalty proceedings. However, the Fifth Amend-

ment self-incrimination privilege and the freedom from

unreasonable searches and seizures have, since Boyd, con-

sistently been held to be invoked in civil penalty proceed-

ings in the decisions of this Court. Marshall v. Barlow’s

Inc., 436 U.S. 307 (1975).

This Court has consistently upheld the self-incrimina-

tion privilege and the search and seizure provisions in

civil penalty cases, and consistently denied the protections

of other individual rights in such proceedings.

The Fifth Amendment self-incrimination provision

was upheld in Boyd v. United States, supra; Lees v. United

States, supra; United States v. United States Coin and

Currency, supra and the Fourth Amendment protection

against unreasonable search and seizure was upheld in One

1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965).

On the other hand, the Court denied recognition for the

assertion of double jeopardy in One Lot Emerald Cut

Stones v. United States, supra; in Helvering v. Mitchell,

supra; in United States ex rel. Marcus v. Hess, 317 U.S. 537

(1943); and in Rex Trailer Co. v. United States, 350 U.S.

148 (1956); in United States v. Regan, 232 U.S. 37 (1914),

the Court held that the government was not required to

prove its case beyond a reasonable doubt in a civil penalty

proceeding, and in Hepner v. United States, 213 U.S. 103

(1909) the Court approved a directed verdict in a civil

penalty case.

Lees involved a monetary fine; Coin and Currency

involved forfeiture of money; Plymouth Sedan involved the

forfeiture of an automobile, and in each of those cases the

Fourth, and Fifth Amendment rights recognized in Boyd

were held to be invoked for the protection of the in-

dividual. One Lot involved the forfeiture of precious gem

stones and Helvering v. Mitchell, supra, involved the pay-

ment of a statutory money penalty, but the double jeopardy

provision was held not to be invoked in either case.

The nature of the penalty in the five cases is the same

—forfeiture of property or money,* or the payment of a

fine or a penalty—the only distinction among the cases

being in the nature of the right asserted. The self-incrim-

ination privilege and the search and seizure right iden-

tified in Boyd were held invoked; the double jeopardy pro-

tection was held not to be invoked by the nature of the

penalty involved.

Ward contends that the history of the Fifth Amend-

ment privilege against “self-accusation” as it developed

under the English common law in response to the inquisi-

torial method, and as incorporated in our American com-

mon law and legal heritage, and as it found its way into

our Constitution, and as it has been interpreted in the

case law of the colonies, the state, and the decisions of

this Court as recently as 1972, underscores the vitality of

and the broad and liberal application to be given to the

self-incrimination privilege.

34. A forfeiture is not limited to tangible property but is

also a monetary penalty. 47 U.S.C. 14, and 503.

It should be stressed that Ward is not here arguing

the widsom or folly of the administratively imposed civil

penalty scheme for oil spills, or for any other particular

proscribed behavior. Nor is Ward asking that the self-re-

porting provisions be struck down; nor would enforcement

of the Act or the collection of the penalty be defeated by

upholding the judgment of the circuit court. It would

still be permissible to assess the penalty based on a: dis-

charge of oil under the Act, providing that the evidence

used to establish the discharge is derived from a source

wholly independent of the compelled disclosure required

by 311(b) (5). See United States v. Mobil Oil Corp., 464

F.2d 1124 (5th Cir. 1972); United States v. Maplewood

Poultry Co., 327 F.Supp. 686 (D.C. Me. 1971). Moreover,

this “use” immunity would be extended only when the

owner-operator had given “immediate” notification.

United States v. Ashland Oil and Transp. Co., 364 F.Supp.

349, 350 (D.C. Ky. 1973).

Ward is well aware of the justifications put forward

in support of administratively imposed civil penalties, such

as expediency, the desire to avoid the stigma of a criminal

record for often unintentional behavior, and the purported

effectiveness of economic deterrence. Ward does not doubt

that in many cases the imposition of civil penalties is

much more expedient than the prosecution of a criminal

case by the Government. But Ward does urge that when

the Constitution is sacrificed to expediency, the Courts

must act on behalf of the Constitution. Barker v. Wingo,

407 U.S. 514 (1972).

In sum, Ward urges that the penalty sought to be

imposed here falls clearly within that class of penalties

which may be called “quasi-criminal” and which entitle

an individual to basic, important, fundamental individual

rights guaranteed by the United States Constitution; that

ee Se

among the most fundamental and basic of all of these

rights is the privilege against self-incrimination guaranteed

by the Fifth Amendment.

In Helvering, this Court undertook to analyze the sanc-

tion involved there to determine whether it was remedial

(civil) or punitive (criminal). We believe our analysis

under Proposition II, infra, and the Government’s Brief

in Chief—not to mention that the three judges of the

Court of Appeals, applying the same criteria as the District

Court, found diametrically different results—prove that

we all recognize: that the test of statutory analysis to

determine whether the penalty is one of remedial or puni-

tive purpose is an elusive one and Congressional intent

is often ambiguous.** Like beauty, the determination is

in the eye of the beholder. Indeed, Mr. Justice Frankfurter

spoke of “dialectical subtleties” in distinguishing criminal

from civil penalties. United States ex rel. Marcus v. Hess,

317 U.S. 537, 554 (separate opinion). It is for this reason

that we believe the history of the self-incrimination clause

is instructive. For hundreds of years, through the English,

Colonial, and American experiences, actions to collect pen-

alties or forfeitures have historically been denominatec

“criminal” or “quasi-criminal” or of such a nature that

the protection against self-incrimination has been extended.

We ask that the Court reaffirm that historical doctrine

today, for it has as much validity in this statutory scheme

as it did at the time of the passage of the hated Navigation

Acts.

35. Indeed other courts found Congressional intent under

311(b)(6) ambiguous. United States v. General Motors Corp.,

403 F.Supp. 1151, 1158 (D.C. Conn. 1975) and two courts ex-

pressed the need for much closer scrutiny of the compelled re-

porting requirement had the defendant been a non-corporate

entity. United States v. Allied Towing, supra, 578 F.2d at 980;

— States v. LeBeouf Bros. Towing Co., supra, 537 F.2d 151-

PROPOSITION Ii:

THE FACTORS ENUNCIATED IN KENNEDY v.

MENDOZA-MARTINEZ ARE NOT CONTROLLING

IN THIS CASE, BECAUSE (1) THE FACTORS WERE

NOT DEVELOPED, LISTED ONLY AS DICTUM,

(2) THEY WERE NOT RELIED UPON IN THE CASE

WHERE THEY WERE DEVELOPED, (3) EMPLOY-

ING THE FACTORS LEADS TO AMBIGUOUS RE-

SULTS. HOWEVER, IF UTILIZED HERE, THEY

SUPPORT THE DECISION OF THE COURT BELOW.

The Government’s first argument is that Section 31i

is designed to be remedial rather than punitive, and hence

does not trigger the protections of the Fifth Amendment

to the United States Constitution. Yet, a reading of history

will demonstrate that the resolution of such an issue as

this requires more than bald assertions and familiar labels.

The Government alleges that the Court of Appeals

below admitted that the provision in question was remediai

in that it helped defray the costs for clean-up of oil spills

for which the Government’s clean-up costs were not other-

wise recoverable. What the Government failed to point

out is the additional language of the Court of Appeals

immediately subsequent to the language they rely upon.

“The fact that the civil penalty assessed pursuant to

subpart b(6) forms a part of this ‘revolving fund’

indicates its remedial nature. See (cases cited).

“However, the statutory language dealing with the

automatic assessment and determination of the amount

of the penalty indicates a punitive intent.... (T)he

factors used in determining the amount of the penalty

are not, in our view, reasonably related to the purposes

of the revolving fund. Rather, the factors are based

upon a retributive and punitive motivation.

“The civil penalty cannot be characterized as com-

pensatory....” 598 F.2d 1187, at 1191.

Thus, it is clear that the Court below felt that the

provisions of the Act in question were of a punitive nature.

Indeed, they acknowledged that portions efthe statute

had as a purpose a remedial aim, but nowhere did they

admit that such partial remedial purpose overcomes.

nor even equals the primary punitive quality of the statute

as a whole. The Government admits as much in its Brief.

In quoting Senate Report No. 91-351, at page 16, it acknowl-

edges that the penalty in question was also expected to

have an impact in deterring discharges. At page 18, its

deterrent impact is again admitted:

“The civil penalty was expected to discourage the

discharges for which clean-up costs were not likely

to be recovered... . (T)he civil penalty helps to

prevent harmful spills ‘by making care more economi-

cal than carelessness.’”” (Emphasis added)

The Government also quotes language from several

cases in support of the proposition that the statute in

question is rem.-dial and not punitive. For example,

United States v. Tex-Tow, Inc., 589 F.2d 1310, 1314-15

(7th Cir. 1978) is cited for the proposition that the statute

is remedial. Tex-Tow, supra, goes much further. While

holding that the statute contains evidence of a remedial

purpose, the Court also indicated that it was clear it had

a more punitive and deterrent purpose as well.

“There is also evidence of a remedial purpose to clean

up spills once they occur rather than solely a deterrent

purpose. ...” (Emphasis added) At 1315

The Government also relies upon United States v.

Marathon Pipeline Co., 589 F.2d 1305, 1309 (7th Cir. 1978),

to support the remedial rationale of the statute. But the

Court in Marathon, supra, again said more than the Gov-

ernment indicates. In particular, it held that, “deterrence

is not the sole purpose . . .” of the penalty. At 1309

Similarly, in United States v. General Motors Corp., 403

F.Supp. 1151, 1162 (D.C. Conn. 1975), the opinion of the

Court evidenced a belief that the statute had a dualistic

purpose, both remedial and punitive.

“The civil penalty provision, when effectively en-

forced, no doubt deters oil discharges. . . .’ (Emphasis

added) At 1162

Also, in United States v. Atlantic Richfield Co., 429 F.Supp.

830, 841 (E.D. Pa. 1977), aff'd sub nom. United States v.

Gulf Oil Corp., 573 F.2d 1303 (3rd Cir. 1978), the Court

demonstrated that it felt the statute had more than simply

a remedial purpose.

‘

‘,.. it (Congress) has chosen to use economic means

- the (b) (6) penalty in order to deter spills. .. .” (Em-

phasis added) At 841

The entire collection of cases that the Government cites

in support of the remedial nature of the statute are sim-

ilarly subject to the same ambiguity. In United States v.

W. B. Enterprises, 378 F.Supp. 420, 422-23 (S.D. N.Y.

1974), the Court although characterizing the penalty in

question as a civil one also said:

“It appears, therefore, that this section is aimed at

preventing any discharge, rather than preventing only

those discharges not removed.” (Emphasis added) At

422

Such rationale, then, supports not simply a remedial

statute which would be aimed at preventing discharges

that would not be removed. But the Court goes further,

directing its provisions at preventing any discharge,

OUR D. - OPB A AALATIOCR GY Mh NT ie

“rather than preventing only those discharges not re-

moved.” That type of intent is certainly one that has

traditionally been regarded as punitive.

United States v. Eureka Pipeline Co., 401 F.Supp. 934

(N.D. Va. 1975) relied upon by the Government, also can

support the punitive as well as remedial nature of the

statute. The Court quite frankly admitted the deterrent

function of the statute:

“Language from the Senate Committee which con-

sidered the amendments of 1972 indicates that deter-

rence was to be one of the results of the penalty im-

posed by paragraph (6). The Committee wrote, ‘The

Committee believes that the discharge of such sub-

stances should be subject to a penalty even though

clean up is not practicable. In this way, each carrier

or handler evaluates the risk of discharge and deter-

mines whether or not potential penalty is worth the

risk.’” (Emphasis added) At 939

It seems clear from these cases, as well as the legis-

lative history, that the statute has both remedial and

punitive-deterrent characteristics and functions. The Court

below recognized this. While recognizing that the statute

had some remedial goals, it noted that the manner in

which these goals were accomplished indicated more of a

punitive criminal intent. For instance, factors that specifi-

cally may not be considered in fixing the amount of the

penalty, by logic should be, if the statute is remedial. For

example, the responsible party’s removal effort and ex-

pense are not to be considered in fixing the penalty.** It

seems clear that if the statute’s intent is indeed remedial,

36. The Commandant’s Instructions specifically provide that

“clean-up” efforts should not be a factor in assessing the penalty.

A 40. The Government took the same position in the District

Court below. A 36.

an effort by the responsible party to remove the spillage

and to expend funds of his own in removing the spillage

would enhance the remedial purpose. By contrast, the

factors that may be considered in fixing the penalty in-

dicate clearly a criminal intent of the statute in question.

Such factors include the degree of culpability associated

with the v.olation, and the amount of oil discharged. By

focusing upon the wrongfulness of the act and the prior

record of the party, the policy of the act seems focused

on the individual liable, rather than upon the act he is

responsible for. As the Court below said:

“This language is lacking in any ‘remedial’ ring. The

costs of investigation are not considered in assessing

the amount of the penalty. Similarly, the factors in-

volved in determining the amount of the penalty are

not in any way related to what damage may have oc-

curred to the environment by reason of the discharge.

See: United States v. W. B. Enterprises, Inc., 378 F.

Supp. 420, 422-23 (S.D. N.Y. 1974).” At 1192

Thus, it is clear that not only the statute’s provisions

on its face reflect both punitive and remedial aspects, the

regulations and policies underlying the enforcement of

the statute are also open to such contradictory interpreta-

tions. It seems clear, then, that a reading of the face of the

statute is inconclusive. Moreover, as the cases cited by

the Government illustrate, and as the quoted provisions

of the legislative history indicate, whether or not the

statute is remedial or punitive is not clear. Most likely,

it has both remedial and criminal attributes. What is

obvious is that the statute cannot simply be characterized

one way or the other merely on the basis of its face, or

its label. Trop v. Dulles, 356 U.S. 86, 94-95.

Since the statute does not clearly on its face indicate

whether it is remedial or punitive, the Government urges

resort might be had to the Mendoza-Martinez test. Yet,

that test has shortcomings in itself. For one, the test was

not a majority opinion of this Court, but only a plurality

one. Thus, the listing of the factors was dictum. Also, the

resolution of Mendoza-Martinez itself was not based upon

the factors cited in that opinion, but upon an examination

into the intent of Congress.

“We hold §§401(j) and 349(a)(10) invalid because in

them Congress has plainly employed the sanction of '

deprivation of nationality as a punishment—for the

offense of leaving and remaining outside the country.

-.. At 165

‘Here, although we are convinced that application of

these criteria to the face of the statute (Mendoza-

Martinez quoted criteria) supports the conclusion that

they are punitive, a detailed examination along such

lines is unnecessary, because the objective manifesta-

tions of Congressional purpose indicate conclusively

that the provisions in question can only be interpreted

as punitive.” At 169

Thus, the Court in Mendoza-Martinez based its deci-

sion on Congressional intent. As we have seen in this

case, however, a firm indication of Congressional intent is

absent. In such a case, one might look to the Mendoza-

Martinez factors for guidance, even though it was only a

plurality opinion.

It should further be noted that the list did not pre-

tend to be conclusive, nor exclusive. Indeed, one com-

mentator has suggested certain other tests which were

and have been applied by this Court in the past in de-

termining whether a statute was penal or regulatory.

[Note, 37 Tulane Law Review 831, 833 (1963) ].

A further limitation upon applying the seven factors

identified in Mendoza-Martinez is that the Fifth Amend-

ment self-incrimination privilege has historically been

found to demand a more liberal interpretation than other

individual rights guarantees contained in the Bill of Rights.

Helvering, supra, at 400, n.3.

Another limitation on the Mendoza-Martinez test is the

incenclusive nature of the indicators enumerated by the

Court. Several courts applying the indicators to the

1321(b) (6) oil spill penalty provision have come to op-

posite conclusions based upon application of the same fac-

tors. The instant case is, of course, a good example. In

Ward v. Coleman, 423 F.Supp. 1352 (W.D. Okla. 1976)

the District Court, after applying the Mendoza-Martinez

indicators, concluded that the penalty was civil. The

Court of Appeals, applying the same factors, found the

penalty to be criminal. Ward v. Coleman, 598 F.2d 1187

(1979). In the Fifth Circuit, the District Court found the

penalty criminal, while the Fifth Circuit found it to be civil,

relying upon Mendoza-Martinez. United States v. LeBeouf

Brothers Towing Co., 377 F.Supp. 558 (E.D. La. 1974),

rev'd, 537 F.2d 149 (5th Cir. 1976).

Nevertheless, given these limitations, and with the

premise that the Mendoza-Martinez factors are not con-

clusive, they are useful in analyzing the various attributes

of a particular sanction with a view to determining the

more significant effects of the sanction in question.

1. Whether the sanction involves an affirmative

disability or restraint.

Despite the Government’s contention otherwise, a

monetary penalty has also been considered as an affirmative

disability. See Atlas Roofing Co. v. Occupational S. & H.

Rev. Com’n., 518 F.2d 990, 1001 (1975) aff’d on other

grounds, 430 U.S. 442. Moreover, in United States v.

Futura, Inc., 339 F.Supp. 162, 165 (D.C. Fla. 1972), the

Court made a similar holding:

“The sanction which can be imposed does involve an

affirmative disability or restraint. The monetary pen-

alty, here a $5,000.00 fine, has traditionally been re-

garded as a form of criminal punishment.”

Indeed, at the time of the oil spill involved in the

case at bar, 33 U.S.C. §1321(b) (6) provided for a fine of

up to $5,000.00 for each offense. While it is conceded that

a monetary penalty may be either a civil or a criminal

sanction, ie., either punitive or regulatory, that fact does

not resolve the question so easily. To be sure, the penalty

of denationalization has been held to be both punitive and

regulatory in nature. Denationalization was found puni-

tive in Mendoza-Martinez and in Trop v. Dulles, supra,

356 U.S. 86, yet not in Perez v. Brownell, 356 U.S. 44

(1958). While a monetary penalty is generally not as

great a disability or restraint as prison or expatriation, a

potential fine of $5,000.00 at the time of the spill, and, as

amended, $50,000.00 or $250,000.00 would certainly be seen

as an affirmative disability by almost all upon whom such

a fine fell.

Indeed, the Court below correctly recognized that mone-

tary penalties can and do involve the type of affirmative

disability or restraint necessary to constitute a criminal

penalty:

“Nevertheless, the imposition of monetary penalties

does ‘inflict a pocket-book deterrence or restraint on

the recipient.’ ” (Atlas cited) At 1193

Yet, even the Court below found little definitive use

for criterion 1 of the Mendoza-Martinez test in the case

at bar, illustrating the problem with the Mendoza-Martinez

test in general.

“Thus, because a sanction is used equally for non-

punitive and punitive purposes, it offers little indication

as to Congress’ intent. Monetary penalties have tradi-

tionully been applied to both criminal and civil stat-

utes.” (Emphasis added) At 1193

2. Whether the sanction has historically been re-

garded as punishment.

Despite the Government’s assertion that this factor

“clearly supports the remedial, non-criminal nature of the

civil penalty provision,” as we have seen, both the Amer-

ican and English legal experience point to a long history of

the existence of the right against self-incrimination in pro-

ceedings involving fines, penalties, and forfeitures—regard-

less of their characterization. Indeed, as was pointed out

previously, it was the colonial experience with arbitrary

and self-incriminatory commercial laws levelling fines,

penalties, and forfeitures that helped lay the foundations

for the establishment of the right against self-incrimination

in America.

Moreover, this principle has received continued his-

torical support through the 19th and into the 20th century,

as our brief previously pointed out. In United States

v. Futura, Inc., supra, the Court held that a monetary

penalty “has traditionally been regarded as a form of crim-

inal punishment.” This Court held in United States v.

LaFranka, 282 U.S. 568, 573 (1931):

“Admitting that the penalty may be recovered in a

civil action, as well as by criminal prosecution, it

is still as a punishment for the infraction of the law.

The term ‘penalty’ involves the idea of punishment,

and its character is not changed by the mode in which

it is inflicted, whether by civil action or a criminal

prosecution.”

In fact, the criminal provision of the 1899 Refuse Act,

33 U.S.C. §411 provides for monetary fines as well as,

or as an alternative to, imprisonment for the very same

acts for which Ward was punished in this case. Such

provision bears out the problems inherent in trying to

rigidly adhere to the Mendoza-Martinez analysis. As the

Court below said:

“(W)hether it (the sanction) has historically been re-

garded as punishment. This indicator also gives little

indication as to Congress’ intent. Monetary penalties

have traditionally been applied to both criminal and

civil statutes.” (Emphasis added) At 1193

Though monetary penalties in general have been his-

torically applied in both criminal and civil statutes, it

seems clear that the fine involved here is the type of

historic fine, forfeiture, or penalty to which the self-incrim-

ination clause has applied. Thus, history in no way sup-

ports the Government’s attempt to apply the Mendoza-

Martinez rationale in its favor, even if that test were

always the proper guide. To the contrary, in regards

to this particular type of fine, history illustrates exactly

the opposite.

3. Whether the sanction comes into play on a find-

ing of scienter.

The Government asserts in its brief that “there is

no scienter requirement for the imposition of a civil penalty

under” 311(b) (6). (Brief in Chief, p. 38) While the terms

of the statute mandate assessment of a penalty for each

offense, regardless of any finding of scienter in the common

law sense, there is an element of scienter involved in

assessing the fine in accordance with the statutory mandate

in consideration of “the gravity of the violation.” [33

U.S.C. §1321(b)(6)]. It is clear that the Coast Guard,

in interpreting the phrase “gravity of the violation,” has

used that term to include a consideration of whether or

not the discharge was intentional, or the result of gross

negligence, and of the degree of culpability of the violator.

[Commandant Instruction No. 5922.11A, A 38-40.]

The Government asserts in its Brief that it is irrelevant

that the criminal sanctions in the Rivers and Harbors

Appropriations Act of 1899 do not contain a scienter re-

quirement. Though Ward would agree that it would not

be relevant that some unrelated criminal statute did not

contain a scienter requirement; we do not believe it can

be said to be irrelevant that the criminal sanction in the

Rivers and Harbors Act, applicable to the identical be-

havior as involved in the instant case, does not involve

scienter.

This statute is objectionable precisely because it pur-

ports to establish a civil penalty applicable to the identical

behavior which is already punishable by a criminal pen-

alty; it compels notification of the behavior to the Govern-

ment, and automatically imposes the penalty based upon

the individual’s compelled notification; this Act effectively

imposes the same sort of monetary penalty as the criminal

monetary penalty provided by the Rivers and Harbors

Act at 33 U.S.C. §411, without the necessity and incon-

venience of affording procedural safeguards. By the magic

of changing labels, the Congress has removed the protection

of the Fifth Amendment’s Self-Incrimination Clause.

Seinen Lt RE a te eee

4. Whether the sanction’s operation will promote

the traditional aims of punishment-retribution

and deterrence.

The Government argues that though admittedly the

provision in question is deterring, it is of the type of

“regulatory deterrence” making it non-criminal.

‘

‘..., as noted above . .. Congress expected §311(b) (6)

to serve some deterrent function, especially where

the oil could not be readily removed.” (Government’s

Brief, p. 41)

The Government, then, contends that the deterrent

effect contemplated in Mendoza-Martinez must be “more

than that which would predictably follow from the assess-

ment of a penalty for a remedial purpose.”

Yet it seems clear here that the manner in which

the Act was written precludes a reading of it as having

a “remedial purpose.” To have a remedial purpose, it

would be necessary for the Act to stress the repair or

the remedying of the damage done to the environment.

Yet the Act in question specifically precludes the consider-

ation of “(1) the responsible party’s removal effort or

expense....” A 40

Indeed, the manner in which the penalties are assessed

supports the proposition that a fine could be assessed “far

in excess of that reasonably related to the remedial pur-

poses . . .” and under the Government’s analysis making

an “in terrorem effect akin to that of being adjudged

guilty of a criminal offense.” Specifically, the statute

provides:

“In determining the amount of the penalty or the

amount agreed upon in compromise, the appropriate-

ness of such penalty to the size of the business of

the owner or operator charged, the effect on the owner

or operator’s ability to continue in the business, and

the gravity of the violation shall be considered.” 311

(b) (6)

Further, the Commandant’s Instructions interpreting

and implementing 1321(b) (6) direct an accounting of the

“gravity of the violation, the degree of culpability, and

the prior recors of the party... .” A 39-40

Moreover, Senate Report 91-351, page 3, on the Water

Quality Improvement Act, regarding the predecessor of

the Act in question, discussed this bill’s penalty provision:

“Frequently, the offenders have made no attempt to

clean up the spill and have gone unpunished. This

bill attempts to correct these deficiencies.”

These considerations simply are not relative to any

remedial purpose. Moreover, a fine assessed according

to the size of the offender, his ability to stay in business,

his culpability, and to “punish” him, could easily result

in a fine completely out of proportion with the remedial

purpose, whether or not the fine is too high or inadequate.

Or, in the words of the Court below:

“In our view, this factor lends considerable weight to

a finding that the civil penalty is actually criminal in

nature. The statute and the administrative policies

adopted pursuant thereto have the effect of retribution.

The penalties are based upon such factors as the

gravity of the violation, the degree of culpability, and

the prior record of the party.

“Thus, we conclude that the retributitive aspects of

the civil penalty provision weighs heavily in favor of

finding the statute penal in nature.” At 1193

5. Whether the behavior to which it applies is al-

ready a crime.

The Government, in analyzing this factor, downplays

the undisputed fact that the Act Ward was convicted under

was clearly already a crime. United States v. White Fuel

Corp., 498 F.2d 619 (1st Cir. 1974). It argued that such a

fact has “little bearing on Congress’ intent” in the present

case simply because the statute at bar is not triggered upon

the finding that a “crime” has been committed, and that

that crime is expressly incorporated into the statute.

Such an argument is clearly but another exercise in

semantics. Nowhere in any of thé cases cited, including

Mendoza-Martinez, does this Court allude to the necessity

of a “nexus” being present within the Government’s defini-

tion of such. In all of the cases cited by the Government,

the issue was simply one of determining the intent of Con-

gress as to whether Congress intended the act in question

to be a crime or not. In those cases, the penalty was des-

ignated by Congress as a non-criminal sanction, or a tax.

In Lipke v. Lederer, 259 U.S. 557, 562 (1922); United States

v. LaFranka, 282 U.S. 568, 572-3 (1931); United States v.

Constantine, 296 U.S. 287 (1935); the sanction in question

was designated as a tax and premised upon the commission

of a criminal act. Yet, the Court did not say that a sanction

had to be so premised in order to in truth be a crime. The

fact that it was in those cases, of course, lent support to

the finding by the Court that the tax Congress levied was

intended to be a criminal penalty. But no such “nexus”

was ever held to be necessary. Cf. Wisconsin v. Pelican

Ins. Co., 127 U.S. 265 (1888).

The finding of a “nexus” has no rational relationship

to the intent of the test. Whether or not the prior act

making Ward’s actions here a crime was passed in 1976 or

1776 is irrelevant to the purpose of this component of the

test. In fact, the longer an act has been designated as

criminal would seem to lend support to the finding that

penalties based upon similar acts are also crimes. As the

Court below put it:

“Whether the behavior to which it applies is already

a ‘crime.’ This factor falls clearly in favor of a find-

ing that the statute is criminal in nature.

“It is therefore clear, that the behavior to which the

civil penalty applies is already a crime.” At 1193

6. Whether an alternative purpose other than pun-

ishment may rationally be ascribed to the sanc-

tion.

As. previously seen, alternative purposes can arguably

be ascribed to the sanction. Indeed, much has been said

of the remedial nature of the statute. Yet, the crucial

problem with this analysis is that alternative purposes

other than punishment may not rationally be ascribed to

the sanction. That this is true is primarily because the

factors involved in determining the penalty have no rela-

tionship to any remedial purpose. Although fines assessed

for oil spills are paid into a revolving fund, which is utilized

according to the statute for clean-up costs where the origin

of the spill is undertermined, or for reimbursement to the

operator who can establish in the Court of Claims that the

oil discharge at issue was caused by an act of God, war,

negligence by the United States, or an act or omission of

a third party [33 U.S.C. §1321(k), (i), (1), (c) and (d),

the amount of the penalty bears no relationship to the cost

to the United States in remedying the spill.

Although the Government stresses the remedial aspect

of paying the penalty monies into the revolving fund under

311(k), it would appear that the actual remedial impact

SR ADEs SAE Sh isde =

comes from the provisions providing that a spiller of oil

must pey for his own clean-up. Indeed, an operator of an

onshore facility who cannot prove the defense of an act of

God, war, negligence of the United States, or an act or

omission of a third party, is liable for the actual cost of

clean-up in an amount not to exceed Fifty Million Dollars,

or in an unlimited amount where the discharge is a result

of willful negligence or willful misconduct. [33 U.S.C. 1321

(f{) (2)]. Thus, the remedial aspect of the act is found in

the potential liability for clean-up costs rather than the

‘penalty provision. Indeed, the potential liability for such

clean-up costs far exceeds the limitation on the penalty

provision. |

Moreover, as we have seen, the factors used in deter-

mining the amount of the fine are not relevant to any

regulatory purpose. Indeed, it is not even permissible to

take into account the responsible party’s removal effort or

expense. (A. p. 40) If indeed the penalty was intended to

be remedial, such a factor would be considered. If the

goal of the act was to remedy the oil spill, the party’s

effort in cleaning up his own spill should be highly relevant

to determining his fine. Moreover, other factors which

may be considered in assessing the fine are equally ir-

relevant to a regulatory remedial purpose. Such factors as

the degree of culpability, the prior record of the responsible

party, and the amount of oil discharged clearly are the

kind of factors traditionally used in assessing criminal

punishment. Also, a consideration of such factors as the

size of the business of the owner or operator, the effect

on the owner or operator’s ability to continue in the busi-

ness, and the gravity of the violation clearly do not ra-

itonally relate to any regulatory remedial purpose. Rather,

they are of the type of consideration traditionally employed

in gauging a fine or a punishment in a criminal proceeding.

Or, as the Court below said:

“In addition to these factors, the Government urges

the penalty can be regarded as compensation to the

United States for tortious damage to the environment

(cases quoted). We agree that the penalty could be

regarded as such compensation, if the factors involved

in determining the amount thereof reasonably related

to the extent of the damage to the environment. How-

ever, as previously noted, the factors are not addressed

to this issue. Therefore, we decline to employ the

Government’s rationale.” At 1194

7. Whether the sanction appears excessive in re-

lation to the alternative purpose assigned.

The Government seems to assert that because the pen-

alty in this case was $250.00, the statute does not provide

for penalties grossly disproportionate so as to smack of

punishment. Moreover, they contend that in the majority

of cases even the maximum penalty of $5,000.00 could

not be considered excessive. Yet, such is not the case.

As the Court below said:

“Imposition of penalties even in situations where the

discharge is accidental, non-negligent and non-inten-

tional, could be excessive. This is especially so, when

the operator, in good faith, attempts to clean up, and,

in fact, does clean up the discharge on his own initia-

tive. Inasmuch as the amount of the penalty is corre-

lated to the size of the business involved, a large

business concern may very well be heavily penalized

despite a lack of fault. Any subsequent clean-up oper-

ations and attempted removal by the operator would

not mitigate this penalty. (Instructions cited). In such

a situation, the imposition of a large penalty would

be excessive. Thus, we conclude that this indicator

leans in favor of the penal nature of the act.” At

1194

To be sure, the consideration of this factor must be

somewhat speculative. Since the amount of the penalty

at the time of the spill ranged from $1.00 to $5,000.00

(and currently from $1.00 to $250,000.00), a literal applica-

tion of the test to the facts of each case could very well

result in a different finding depending upon the size of

the fine.

However, an examination of the statutory directive,

and of the Coast Guard’s interpretation thereof, would

seem to indicate a punitive intent. Consideration of “ap-

propriateness of such penalty to the size of the business

of the owner or operator charged. . .” would seem to

indicate an intent to assess a penalty not in absolute terms

based upon the size of the spill, which would be related

to a regulatory remedial purpose, but rather on subjective

terms, based upon the size of the operator. The intent

appears to make the fine large enough to be felt.

There simply is not a reasonable or rational alternative

purpose assignable to the penalty. The penalty attaches

where the operator is without fault, and where the operator

makes a good faith clean-up. Under the statutory direc-

tive, a small business and a large business “guilty” of

the identical spill, and of the identical clean-up effort,

would presumably be fined different amounts, each appro-

priate to the size of the business. In both cases, the

environmental harm which the Government urges would

be identical; yet the fine assessed would be tailored to

the size of the business in order to assure that the large

business paid a fine proportionately large enough to be

felt. Thus, it is clear that there is no rational relationship

between this fine and the harm to the environment sought

to be remedied. Rather, the fine is directed at the individ-

ual operator in question and is determined on the basis

of those factors traditionally used in determining criminal

punishments and penalties.

The rigorous application of a little wheatfield common

sense to the statutory scheme involved here clearly exposes

the fundamentally punitive and constitutionally deficient

nature of the 1321(b) (6) oil spill penalty.

The Government vigorously contends that the penalty

provision is, in fact, regulatory. What the Government

fails to account for is the essentially unregulable nature

of the activity which invokes the fine. It is not the business

of engaging in the handling of oil which invokes the fine—

it is the spilling of oil. It is not just the careless spilling

of oil, or the negligent spilling of oil, or intentional spilling

of oil, which invokes the fine; it is any spill of oil, regard-

less of fault; in fact, the operator incurs the fine even

if he could prove that the oil spill was caused by the

acts of third parties which he had done his utmost to

prevent. See United States v. General Motors Corp., 403

F.Supp. 1151 (D.C. Conn. 1975), in which General Motors

was fined after vandals opened a spigot on a tank, allow-

ing oil to reach navigable waters. The District Court

noted that General Motors had taken every reasonable

precaution to prevent the exact sort of act which, in fact,

caused the spill.

The Government compares Ward’s instant case with

the situation in Helvering v. Mitchell, 303 U.S. 391, where

this Court found a 50 percent penalty for failure to pay

income tax was a remedial penalty and did not invoke

the double jeopardy clause protection after Mitchell had

been acquitted on criminal charges of evading income tax.

Aside from the fact that the Self-Incrimination Clause

was not at issue in Helvering v. Mitchell, supra, the be-

havior there involved was behavior in which Mitchell had

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a choice. The fine was imposed for failure to pay income

tax due, a shortcoming which Mitchell could have remedied

by paying the tax. Mitchell thus had a choice of regulating

his behavior to conform to the requirements of the statute,

or not, arid chose not.

As the trial transcript reveals, Ward here essentially

had no choice with regard to the oil spill. The cause

of the spill was never determined; it happened and Ward

was fined.

The combination of attributes which characterize the

oil spill penalty scheme renders clear the constitutional

deficiency in this particular statutory penalty.

First and foremost is the fact that the report compelled

by 1321(b) (5) under threat of criminal sanction for failure

to report is the trigger upon which imposition of the pen-

alty is made by the Coast Guard.

Secondly, the automatic nature of the fine insures that

the proscribed act will invoke the fine, regardless of fault.

There is, it seems to Ward, something inherently repugnant

in a scheme which not only imposes an automatic fine upon

absolutely blameless activity, but further compels the

victim of the penalty to furnish a detailed report of his

misfortune so that he may be appropriately fined. It is

akin to requiring a homeowner whose house burns to the

ground to file a report with the appropriate clean air

agency, under threat of criminal prosecution for failure to

do so, so that he may be appropriately fined for polluting

the atmosphere with smoke. And, of course, in the case

of oil spill, the operator has the additional liability to third

parties for any damages caused, together with clean-up

liability, together with his direct monetary loss resulting

from the spill.

The third determinative element of the statute is its

obvious punitive intent. As previously discussed, the Con-

gressional Committee Report indicated a desire to punish

oil spillers; the statute itself contains language directing

consideration of the size of the business in setting the fine,

presumably with a view to insuring that the penalty be

appropriately large enough to be felt, although there is

further statutory direction to apparently protect the ability

of the operator to continue in business.

The fourth distinguishing characteristic of the statu-

tory scheme which compels the conclusion that it is puni-

tive and criminal is the fact that the remedial purposes

which the monetary penalty could presumably satisfy

are elsewhere provided for in the statute. Other pro-

visions provide for direct liability for clean-up costs, for

direct liability to third parties damaged by any oil spills.

Since this penalty statute is in addition to the other

remedial purposes, it would appear that its only logicial

purpose is to punish the oil spiller.

CONCLUSION

The Government has claimed that unless the decision

of the Court of Appeals is reversed, the enforcement of

the Act and the purpose, therefore, to “restore and maintain

the chemical, physical and biological integrity of the Na-

tion’s waters” are threatened. We believe this to be an

exaggerated claim of statutory impotence. At most, given

the facts stated in the Petition for Certiorari (pp. 12-

13), the number of operators who are non-corporate and

therefore able to claim the protection against self-incrim-

ination will have a relatively insignificant impact upon

the Act. The impact, however, upon the Fifth Amendment

will be something else; there will be a stunted right against

self-incrimination. Already the suggestion has received

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POS BS SELES te

To BR S27

favorable consideration that more administrative “civil”

penalties” should be assessed.** The argument made here

by the Government to override the protection of the Fifth

Amendment is perhaps superficially persuasive, given the

concerns with oil pollution and chemical discharges. Mea-

sured against such natural concerns (which Ward shares)

the temptation to loosen slightly the protection against self-

incrimination is inviting. “It may. be that it is the obnox-

ious thing in its mildest and least repulsive form; but

illegitimate and unconstitutional practices get their first

footing in that way, namely: by silent approaches and

slight deviations from legal modes of procedure . . .,”

Boyd, at 641. “This Court has been zealous to safeguard

the values that underlie the privilege (against self-incrim-

ination)” Kastigar v. United States, 406 U.S. 441, 445 (cit-

ing Boyd).

There are important values in upholding in this in-

stance the protection against self-incrimination that is co-

erced by a threat of criminal prosecution for failure

toreport. The privilege against self-incrimination

“

. reflects many of our fundamental values and

most noble aspirations . . . our preference for an ac-

cusatorial rather than an inquisitorial system of crim-

inal justice; our fear that self-incriminating statements

will be elicited by inhumane treatment and abuses;

our sense of fair play which dictates a ‘fair state-

individual balance by requiring . . . the government

in its contest with the individual to shoulder the entire

load’; our respect for the inviolability of the human

37. The Administrative Conference of the United States has

approved the recommendation to broaden the use of administra-

tive civil penalties and at the same time has deplored any addi-

tional rule-making procedural safeguards. See 41 U.S. Law Week

2326, and Administrative Conference of the United States, Pro-

fessor Harvey J. Goldschmid, “An Evaluation of the Present and

Potential Uses of Civil Money Penalties as a Sanction by Federal

Administrative Agencies.” November 1, 1972.

personality and of the right of each individual ‘to

a private enclave where he may lead a private life’;

our distrust of self deprecatory statements ... .”

Murphy v. Waterfront Commission, 378 U.S. 52, 55

(1964)

In light of these policies, imposition of a “civil penalty”

against those who give notice of a spill contravenes the

privilege against self-incrimination. Requiring a spiller

to give the Government the evidence it needs to impose

liability serves to eliminate the Government's obligation

to carry “the entire load.” Indeed, forced notice suggests

an “inquisitorial” rather than an “accusatorial” system.

Furthermore, such notice appears to invade the “private

enclave” by requiring disclosure of activities the Govern-

ment is attempting to regulate. In view of the established

judicial policy of construing the amendment’s protections

broadly, Grosso v. United States, 390 U.S. 62 (1968), the

decision of the Court of Appeals should be affirmed. Re-

versal of that judgment can be supported only by artificial

refinements and technicalities which find no support in

the self-incrimination clause of the Fifth Amendment. We .

ask the Court’s continued fidelity to the history, meaning,

and purpose of the privilege and protection against com-

pelled self-incrimination.

Respectfully submitted,

STEPHEN JONES

P.O. Box 3339

Enid, Oklahoma 73701

Davin C. BUTLER

P.O. Box 3887

Enid, Oklahoma 73701

JAMES SEARS BRYANT

P.O. Box 1844

Enid, Oklahoma 73701

Attorneys for L.O. Ward

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.