Petition for Writ of Certiorari — Meadowlake Corp. v. Ohio (No. 08-221)

\0> (\) Supreme Court, U.S.

os 08-221 AWG 19 2008

Jn Whe OFFICE OF THE CLERK

Supreme Court of the Anited States

¢

MEADOWLAKE CORPORATION, et al.,

Petitioners,

V.

STATE OF OHIO, ex rel. NANCY ROGERS,

ATTORNEY GENERAL OF OHIO,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Ohio Supreme Court

+

PETITION FOR WRIT OF CERTIORARI

¢

ROBERT E. SOLES, JR.

Counsel of Record

FAITH R. DYLEWSKI

KARA DODSON

LAW OFFICE OF ROBERT E.

SOLES, JR., CO. LPA

6545 Market Avenue, North

North Canton, Ohio 44721

Tel: (330) 244-8000 ~

Fax: (330) 244-8002

E-mail: fdylewski@soleslaw.com

Counsel for Petitioners,

Meadowlake Corporation, et al.

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

1)

2)

3)

4)

5)

6)

QUESTIONS PRESENTED

Whether the Excessive Fines Clause of the

Eighth Amendment to the United States Consti-

tution applies to a civil, administrative fine as-

sessed in a non-forfeiture case.

Whether the emphasis on the “punitive” nature

of a fine as set forth in Austin or the distinction

between remedial fines and punitive fines as de-

lineated in Bajakajian applies when analyzing the

constitutionality of a civil, administrative fine un-

der the Excessive Fines Clause of the Eighth

Amendment to the United States Constitution.

If the Excessive Fines Clause of the Eighth

Amendment to the United States Constitution

does apply to a civil, administrative fine, does the

“grossly disproportionate” standard apply to a non-

forfeiture case.

If the Excessive Fines Clause of the Eighth

Amendment to the United States Constitution

does apply to a civil, administrative fine, does the

- U.S. Civil Penalty Policy apply and what role, if

any, does the ability to pay of the one on whom the

fine is imposed play.

Whether the due process rights of Petitioners

were violated when Petitioners were denied the

opportunity to present evidence, cross-examine

witnesses, and otherwise participate in an evi-

dentiary hearing.

Whether the due process rights of Petitioners

were violated where a court denies a continuance

knowing that a corporation (that has a right to

counsel in a quasi-criminal case) will be forced to

proceed unrepresented.

re

il

PARTIES TO THE PROCEEDINGS

PETITIONERS

(DEFENDANTS AND APPELLANTS BELOW):

MEADOWLAKE CORPORATION AND MEADOW-

LAKE LTD.

Represented by Robert E. Soles, Jr., Esq.

The Law Offices of Robert E. Soles, Jr. Co., LPA

6545 Market Avenue North

North Canton, Ohio 44721

RESPONDENT

(PLAINTIFF AND APPELLEE BELOW):

THE STATE OF OHIO, EX REL. NANCY ROGERS,

ATTORNEY GENERAL OF OHIO

Represented by Andrea M. Salimbrene

Assistant Attorney Genera! of Ohio

30 E. Broad Street, 25th Floor

Columbus, OH 43215

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CORPORATE DISCLOSURE

Pursuant to Supreme Court Rule 29.6, Petition-

ers, Meadowlake Ltd. and Meadowlake Corporation

state that Meadowlake Ltd. is a duly licensed, pri-

vate, Ohio limited liability company with no parent

companies. Meadowlake Corporation is a duly li-

censed, private, Ohio for-profit corporation with no

parent companies. Meadowlake Ltd. owns and oper-

ates Meadowlake Golf and Swim Club. Meadowlake

Corporation owns the land upon which Meadowlake

Golf and Swim Club operates.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................0.cccccceseceeeees i

PARTIES TO THE PROCEEDINGS ...................... ii

CORPORATE DISCLOSURE .........................ceceee iii

pe iv

po Fe Pigs 8 ny: rn vi

CITATIONS FOR OPINIONS BELOW. ................. 1

BASIS FOR JURISDICTION IN THIS COURT.... 1

CONSTITUTIONAL AND STATUTORY PROVI-

I aicccebinnseisncnmesontaronsapesemsseesoneces 1

STATEMENT OF THE CASE................cccsccccsserevee 3

REASONS FOR GRANTING CERTIORARI......... 6

I. THIS CASE PRESENTS THE OPPOR-

TUNITY FOR THE UNITED STATES

SUPREME COURT TO ADDRESS THE

ISSUE OF WHETHER THE EXCESSIVE

FINES CLAUSE APPLIES TO CIVIL,

ADMINISTRATIVE FINES. ....................... 8

Il. IF THE COURT ANSWERS THE PRE-

CEDING IN THE AFFIRMATIVE, THIS

CASE ALSO PRESENTS THE OPPOR-

TUNITY FOR THE UNITED STATES

SUPREME COURT TO SET FORTH THE

ANALYSIS THAT SHOULD BE USED

WHEN THE EXCESSIVE FINES CLAUSE

IS APPLIED TO AN ADMINISTRATIVE

Vv

TABLE OF CONTENTS - Continued

Page

III. THIS CASE PRESENTS SIGNIFICANT

QUESTIONS WITH RESPECT TO THE

DENIAL OF MEADOWLAKE’S DUE

PROCESS RIGHTS UNDER THE FOUR-

TEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION ................eecceesees 21

Ca Y iokenchtnssintbyulinrimnichenemnntcincantiieneniie 24

APPENDIX TABLE OF CONTENTS

Judgment Entry from the Ohio Supreme Court

Se a tic ceibicintikcitieiicinitenipiabinbicenti App. 1

5th District Court of Appeals for the State of

Se ncncncsoncsencdcainionionanehetpeeminnttnianioen App. 2

5th District Court of Appeals for the State of

Ohio’s Judgment Entry...................2....:s2eseeees App. 26

Judgment Entry from Stark County, Ohio Court

of Common Pleas dated August 4, 2008.......... App. 27

Judgment Entry from Stark County, Ohio Court

of Common Pleas dated August 1, 2008.......... App. 42

Motion to Stark County, Ohio Court of Com-

mon Pleas for Evidentiary Hearing ..............App. 44

Meadowlake Ltd/Meadowlake Corporation’s

Memorandum to the Ohio Supreme Court ..... App. 50

Meadowlake Ltd./Meadowlake Corporation’s

Brief to the 5th District Court of Appeals for

ad I Tr ID iciciesiccisecscnaervitncenensinideeiainns App. 69

vi

TABLE OF AUTHORITIES

Page

CASES

Alexander v. U.S., 509 U.S. 544, 113 S. Ct.

2766, 125 L.. Ed. 2d 441 (19G3B)..........0.cccccceesercccceseces 7

Austin v. U.S., 509 U.S. 602, 113 S. Ct. 2801,

Be Be Be Be I GOD cr icccrcccccccccccccsccoccceceses passim

Badders v. U.S., 240 U.S. 391, 36 S. Ct. 367, 60

EE 7

Brown v. Dayton Malleable Iron, 1 Ohio St.3d

5 18

Browning-Ferris Industries of Vermont, Inc. uv.

Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct.

2909, 106 L. Ed. 2d 219 (1989)......................:.sseeeees 6

Cox for U.S. Senate Committee, Inc. v. Federal

Election Commission, 2004 WL 783435 (N.D.

EE SE TS eS 15

Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779,

a ccusnenosnonconeess 21

Hannah v. Larche, 363 U.S. 420, 80 S. Ct.

By & Bs. Ble Be BOE CABO nncvcccccccccvcccecccccescesceees 22

Hudson v. U.S., 522 U.S. 93, 118 S. Ct. 488,

I oo. ssnccenanscsecesevosscesoscouvense 16

Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct.

3B6S, SS Lh. Ha. BA G06 CIDGD) .....0.0000000ccceccceccc.0.00005- 21

Jennings v. Mahoney, 404 U.S. 25, 92 S. Ct.

es IED... sccscccniecenoncosovanccores 21

Kelly v. U.S. Environmental Protection Agency,

203 F.3d 519 (7th Cir. 2000) ......................ccceees 17,18

vii

TABLE OF AUTHORITIES ~ Continued

Page

Newell Recycling Company, Inc. v. U.S. Envi-

ronmental Protection Agency, 231 F.3d 204

I ica chincensichdaieiaihinibiinidiiunanbitiinieianideseses 17, 18

Pervear v. Commonwealth of Massachusetts, 72

ts GE y, Be en Bs Ge CI cscccccenescesccsescsscccescovens 7

Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55,

a I etc lesmesnddinnndanbnininiéianienrvesons 22

Savina Home Industries Inc. v. Secretary of

_.-—s EeBor, G4 F-BS TSSS (IGBTS) ...000ccccccerececesesecorscocessees 23

Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001,

OO ie I os accisibsgndensinsunniniatinentpeainioens 16

Towers v. City of Chicago, 173 F.3d 619 (7th

EE SR SEE Cn» ee en ee 15, 16, 17

Union Savings Assn. The Homeowners Aid, 23

Ohio St. 2d 60, 262 N.E.2d 558 (1970)................... 22

U.S. v. Bajakajian, 524 U.S. 321, 118 S. Ct.

er ee lf | nner passim

U.S. v. Halper, 490 U.S. 435, 109 S. Ct. 1892,

i ee ee ee i iiiktictienicncticttusniecccesnsccvonsentes 16

U.S. v. Lippert, 148 F.3d 974 (8th Cir. 1998)....... 11, 12

U.S. v. Nevada Power Company, 1990 WL

149660 (D. Nev. Jan. 1, 1990)....................ce eee 16, 17

U.S. v. Production Plated Plastics, Inc., 1992

WL 397725 (W.D. Mich. Sept. 4, 1992)....... 16, 17, 18

U.S. v. Production Plated Plastics, Inc., 61 F.3d

a cenbahdnandaneidasdsiabonnintuite 16

vill

TABLE OF AUTHORITIES — Continued

Page

U.S. v. Rad-O-Lite of Philadelphia, Inc., 612

Se a sitiibiatipdboeaeia 22

U.S. ex rel. Tyson v. Amerigroup Illinois, Inc.,

488 F. Supp.2d 719 (N.D. Ill. 2007).............00.... 15,17

CONSTITUTIONAL PROVISIONS AND STATUTES

Se . ssenunadonmebdiods 1, 8, 22, 23

Be I A I ssn ccnssnsuesscesinecsieseisiniel passim

oe ee: re 2, 8, 21, 23

EE TT nT Ry 9,10

Ee 2,18, 19

Ee I ceiccnsenncssinasncisonasteiiiniiniianlil 9

a cacnsitelinsiomalaeiili 12

Ohio Rev. Code Ann. §4705.01 ................cccccececeeeeeeeess 22

Ohio Rev. Code Ann. Chapter 6109 ......................:00..00 4

LAW REVIEW ARTICLES

Clark, Civil and Criminal Penalties and For-

feitures: A Framework for Constitutional

Analysis, 60 Minn.L.Rev. 379, 381 (1976).............. 23

1

CITATIONS FOR OPINIONS BELOW

The trial court’s opinion was not reported. The

opinion of the 5th District Court of Appeals for the

State of Ohio (App. 2-25) is reported at 2007 Ohio

6798, 2007 Ohio App. LEXIS 5949. The decision of the

Ohio Supreme Court denying the Petitioners’ Memo-

randa of Jurisdiction (App. 1) is reported at 2008

Ohio 2340, 886 N.E.2d 872.

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BASIS FOR JURISDICTION IN THIS COURT

This case was timely appealed to the 5th District

Court of Appeals for the State of Ohio. That court

filed its opinion on December 17, 2007. The Ohio

Supreme Court declined jurisdiction to hear Petition-

ers’ timely filed appeal on May 21, 2008. Title 28 of

the United States Code §1254(1) confers jurisdiction

on the United States Supreme Court to review, on

writ of certiorari, the opinion of the 5th District Court

of Appeals for the State of Ohio.

¢

CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

The Sixth Amendment to the United States

Constitution states:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

2

committed, which district shall have been

previously ascertained by law, and to be in-

formed of the nature and cause of the accu-

sation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence

[sic].

The Eighth Amendment to the United States

Constitution states: Excessive bail shall not be re-

quired, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

The Fourteenth Amendment to the United States

Constitution states:

All persons born or naturalized in the United

States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of citi-

zens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

The Clean Water Act, 22 U.S.C. §309(d) states in

part that:

(ijn determining the amount of a civil pen-

alty the court shall consider the seriousness

of the violation or violations, the economic

benefit (if any) resulting from the violation,

3

any history of such violations, any good-faith

efforts to comply with the applicable re-

quirements, the economic impact of the pen-

alty on the violator, and such other matters

as justice may require.

4

STATEMENT OF THE CASE

The underlying state case revolved around re-

cords violations and technical omissions stemming

from Petitioners, Meadowlake Corporation’s and

Meadowlake Limited, LLC’s (collectively referred to

hereafter as “Meadowlake”) ongoing dispute with

the Ohio Environmental Protection Agency (“EPA”)

regarding whether Meadowlake was and is, in fact, a

public water system subject to regulation.

The Meadowlake Golf and Swim Club (“Club”)

located in Canton, Ohio is operated by Petitioner,

Meadowlake Limited, LLC; Petitioner, Meadowlake

Corporation, is the holding company that owns the

land on which the Club and golf course are located.

Brief to the 5th District Court of Appeals for the State

of Ohio. App. 69 at 91. There are two separate wells

that service the property: a hard-water well used

exclusively for irrigation of the golf course, and a

separate soft-water well that services the Club and

the Barr family residence that is also located on the

property. App. 74 at {1.

In 1995, the Ohio EPA requested information on

the wells. Jd. Before Meadowlake could submit infor-

mation to the Ohio EPA, the Ohio EPA arbitrarily

4

reclassified the well as ground water under the

influence of surface water. This change in designation

was made without any evidence of bacteria intrusion

into the well, and without any change in circum-

stances surrounding the well. Jd. at App. 75. It is

from this re-classification of the well that the viola-

tions in this matter stem.

In 1999, the Ohio EPA informed Meadowlake

that the well was re-designated as “ground water

under the direct influence of surface water.” Jd. at

App. 77. Thereafter, Meadowlake took reasonable

steps toward obtaining city water from the City of

Canton. However, Meadowlake was unsuccessful in

procuring city water. Jd. at App. 78. Because the well

had not been abandoned or updated, nor an approved

water filtration system had been constructed and

installed as of 2001, the Ohio EPA considered Mead-

owlake to be in violation. Jd.

In May 2002, the Ohio EPA issued unilateral

administrative findings and orders finding that

Meadowlake was in violation of Ohio Revised Code

Chapter 6109.’ Jd. Meadowlake filed a Notice of

Appeal challenging the unilateral administrative

findings and orders and commenced a case with the

Environmental Review Appeals Commission (“ERAC”).

Id. On September 23, 2003, one week before the appeal

before ERAC was to begin, the Director revoked his

' Ohio Revised Code Chapter 6109 grants the Ohio EPA

with the authority to enforce the provisions of the Clean Water

Act.

5

unilateral administrative findings and orders. /d.

ERAC dismissed Meadowlake’s pending appeal as

moot. Jd. The revocation of the EPA’s findings and

orders and the subsequent dismissal of Meadowlake’s

appeal, led Meadowlake to believe that its public

water system designation, and the resulting notices of

violations, were retracted. Id.

However, on May 19, 2004, the State of Ohio filed

a civil complaint, alleging that Meadowlake owned

and operated a public water system, and was in

violation for not having a license, failing to sample

the water, and for not posting notice. Jd. On March

23, 2006, the trial court granted Meadowlake’s attor-

ney leave to withdraw from the case. Meadowlake

was then unsuccessful in retaining replacement

counsel prior to the trial. Jd. at App. 79.

The trial went forward on May 30, 2006, and

Meadowlake was unable to cross-examine the State’s

witnesses, offer evidence, make objections or other-

wise participate or defend itself in the proceedings.

Id. at App. 79-80. Of particular note is the fact that at

least one of the State’s witnesses’ testimony contra-

dicted his earlier report related to the well. Jd. at

App. 76. Subsequently, in late June 2006, Meadow-

lake retained replacement counsel. Jd. at App. 80. On

July 11, 2006, Meadowlake, by and through counsel,

moved the trial court for an evidentiary hearing in

order to present evidence on the record. Jd. Meadow-

lake’s Motion was summarily denied on August 1,

2006. Id. On August 4, 2006, the final judgment entry

was entered and the court assessed a $300,000.00

6

fine upon Meadowlake. Subsequently, Meadowlake

appealed to the 5th District Court of Appeals. /d.

On October 17, 2007, the 5th District Court of

Appeals for the State of Ohio affirmed the decision of

the trial] court holding that the Eighth Amendment to

the United States Constitution does not apply to civil

penalties and holding that Meadowlake’s due process

rights were not violated when the trial court pro-

ceeded with the evidentiary hearing even though the

corporation was unrepresented. See App. 2-25. Mead-

owlake timely filed its Jurisdictional Memorandum to

the Ohio Supreme Court. The Ohio Supreme Court

declined to jurisdiction to hear Meadowlake’s appeal

on May 21, 2008. See App. 1.

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REASONS FOR GRANTING CERTIORARI

The United States Supreme Court has had

occasion to analyze the Excessive Fines Clause under

the Eighth Amendment to the United States Consti-

tution only a handful of times. In both Austin v. U.S.,

509 U.S. 602, 113 S.Ct. 2801, 125 L. Ed. 2d 488

(1993) and U.S. v. Bajakajian, 524 U.S. 321, 118

S. Ct. 2028, 141 L. Ed. 2d (1998), the Court has

expressly held that Excessive Fines Clause limits the

government's power to extract payments, whether in

cash or in-kind, as punishment for some offense.

Furthermore, the Court has defined a “fine” as a

payment to a sovereign as punishment for some

offense. Browning-Ferris Industries of Vermont, Inc. v.

Kelco Disposal, Inc., 492 U.S. 257, 109 S. Ct. 2909,

7

106 L. Ed. 2d 219 (1989). A forfeiture is a fine, within

the Excessive Fines Clause, if it constitutes punish-

ment for an offense. Alexander v. U.S., 509 U.S. 544,

113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993); Bajakajian,

supra.

However, the Court has not had occasion to

analyze the Excessive Fines Clause as it relates to an

administrative, civil fine, i.e. those specific cases

where the fine is imposed by the government based

upon conduct that violates a specific statutory scheme

and where the fine imposed is not intended to be a

forfeiture. In 1916, the Court ruled in Badders uv.

U.S., 240 U.S. 391, 36 S.Ct. 367, 60 L. Ed. 706

(1916), that fines imposed under a fraud statute fall

under the purview of the Eighth Amendment. Simi-

larly, in 1866, the Court held that a fine imposed

under a Massachusetts statute could be subject to

review. Pervear v. Commonwealth of Massachusetts,

72 U.S. 475, 18 L. Ed. 608 (1866). Finally, the Court

has recently held that the Excessive Fines Clause

applies to a federal reporting statute. Bajakajian,

supra. However, the penalty in this case was the

forfeiture of the monies that were not reported to

customs.

In addition to, and because of, the fact that the

Court has not yet addressed the Excessive Fines

Clause in relation to an administrative fine, confu-

sion has developed within the Circuit Courts and

District Courts as to whether and how to apply the

Court’s recent analysis in Austin and Bajakajian in

such cases. As a result, the Court should grant Mead-

owlake’s Petition.

8

Finally, this case involves the denial of Meadow-

lake’s Due Process Rights. The trial court denied

Meadowlake the opportunity to present evidence,

cross-examine witnesses, and otherwise participate at

the evidentiary hearing in this matter. This decision

denied Meadowlake’s Fourteenth Amendment Due

Process Rights. Also, it is well-settled that the Sixth

Amendment to the United States Constitution re-

quires that a corporate defendant in a criminal and a

quasi-criminal case be represented by counsel. The

case at the Ohio trial court level constitutes a quasi-

criminal matter. As such, when the trial court denied

Meadowlake’s motion for a continuance (knowing full

well that Meadowlake would have to proceed to trial

and that it could not represent itself), the trial court

effectively denied Meadowlake’s Sixth Amendment

right to counsel. And, for that reason, Meadowlake’s

Petition should also be granted.

I. THIS CASE PRESENTS THE OPPORTU-

NITY FOR THE UNITED STATES SU-

PREME COURT TO ADDRESS THE ISSUE

OF WHETHER THE EXCESSIVE FINES

CLAUSE APPLIES TO CIVIL, ADMINIS-

TRATIVE FINES.

As noted above, the Court’s relatively recent

opinions in Austin and Bajakajian have made it clear

that the Excessive Fines Clause applies to fines

imposed in forfeiture cases. However, it has been

suggested that the Court’s differing analysis in the

two cases has created some confusion as to whether

9

and how to apply their holdings in administrative

fines cases. In fact, the dissent in Bajakajian, supra,

specifically states that the disparate analyses in the

two cases leaves open the question of whether the

Excessive Fines Clause applies to administrative

fines.

In Bajakajian, supra, customs inspectors charged

the respondent with attempting to leave the United

States without reporting that he was carrying cash in

excess of $10,000.00, as required by 31 U.S.C.

§5316(a)(1)(A). The United States then sought forfei-

ture of the entire $357,144.00 that he was carrying

under 18 U.S.C. §982(a)(1). The District Court and

Ninth Circuit both concluded that full forfeiture

would be grossly disproportional to the offense in

question and would therefore violate the Excessive

Fines Clause of the Eighth Amendment. This Court

agreed. For the Court, the “touchstone” of the consti-

tutional inquiry was whether the fine imposed was

proportional to the gravity of the offense. Jd. at 334.

In doing so, this Court rejected the United States’

argument that 18 U.S.C. §982(a)(1) was remedial in

nature and, thus, not subject to the Excessive Fines

Clause. It was in the Court’s rejection of this argu-

ment that gives rise to the potential confusion al-

luded to above. The United States argued that

forfeitures served an important remedial purpose

because the forfeiture deterred the illicit movement of

cash and the forfeiture gave the government valuable

information to investigate and detect criminal activ-

ity. Bajakajian, supra, at 329. The Court, however,

10

rejected this argument because the United States

relied upon cases that involved civil in rem forfei-

tures, i.e. cases against the “guilty” property rather

than in personam cases, which were cases against the

“guilty” person. Jd.

Specifically, it was the resurrection of the distinc-

tion between the in rem and in personam forfeitures

that bothered the dissent. Jd. at 344-45. The United

States argued that the forfeiture of all of Bajakajian’s

money was proportional to his offense because 18

U.S.C. §982(a\1) descended from other statutes,

enacted at roughly the same time as the Eighth

Amendment, which required full forfeiture of goods

involved in customs offenses or the payment of mone-

tary penalties proportioned to the goods’ value. Jd. at

331-32. The Court rejected this argument because

those early customs statutes did not punish for a

criminal offense. Jd. at 332. They were civil in rem

forfeiture actions where the government proceeded

against the “guilty” property itself. Jd. This made the

forfeitures remedial in nature and not punitive.

Likewise, statutes that imposed monetary forfeitures

proportioned to the value of the goods involved served

the remedial purpose of reimbursing the government

from the evasion of customs duties, and not of punish-

ing the wrongdoers. Jd. In essence, if the fine is

remedial in nature, the Excessive Fines Clause does

not apply; if it is punitive in nature, then it does.

The problem created by this analysis arises when

Bajakajian is read together with Austin. In Austin,

the Court stated that the determinative question is

11

not whether a forfeiture is civil or criminal but

whether the forfeiture is a monetary punishment.

Because a fine may serve more than one purpose, the

fact that a forfeiture serves both remedial goals and

punitive goals will not exclude it from analysis under

the Excessive Fines Clause. The seemingly disparate

analysis between the two cases was alluded to by

Justice Kennedy in his dissent in Bajakajian. He

states:

In striking down this forfeiture, the majority

treats many fines as “remedial” penalties

even though they far exceed the harm suf-

fered. Remedial penalties, the Court holds,

are not subject to the Excessive Fines Clause

at all.... Proceeding from this premise, the

majority holds customs fines are remedial

and not at all punitive, even if they amount

to many times the duties due on the goods.

... In the majority’s universe, a fine is not a

punishment even if it is much larger than

the money owed. This confuses whether a

fine is excessive with whether it is a pun-

ishment.

Bajakajian, supra, at 345. The danger, notes Justice

Kennedy, is that the Court “appears to remove impor-

tant classes of fines from any excessiveness inquiry at

all.” Id. at 344.

At least one Circuit Court also expressed concern

over the inconsistencies in the two opinions. In U.S.

v. Lippert, 148 F.3d 974 (1998), the 8th Circuit ap-

plied this Court’s analysis in Austin to find that the

12

civil penalty authorized in 41 U.S.C. § 55(a)(1) (the

civil penalty provision under the Anti-Kickback Act)

is punitive because it is intended to serve in part as

punishment. However, and more importantly, the

court stated that there was a “strong conflicting

signa!” from Bajakajian. Id. at 978. The court further

stated: 7

If the Bajakajian dissenters have properly

construed the majority opinion, then civil

penalties imposed under 41 U.S.C. § 55(a)(1)

may not be subject to the Excessive Fines

Clause at all, because like customs forfei-

tures they serve the remedial purpose of

reimbursing the government for losses accru-

ing from kickbacks.

Id. Most telling, the court then stated that the issue

of whether the Excessive Fines Clause applies to

Anti-Kickback Act civil penalties is important, and

“we are not certain how the Supreme Court will

resolve it.” Id. (Emphasis added.) The Lippert court

dodged this question by finding that, if the Excessive

Fines Clause did apply, then the fine was not consti-

tutionally excessive.

The Lippert court has succinctly identified the

confusion caused by the disparate analysis in Austin

and Bajakajian. Circuit courts, first and foremost, do

not know whether or not to apply the Excessive Fines

Clause analysis to administrative fines cases. If the

analysis were as straightforward as set forth in

Austin, all a reviewing court would have to do is to

consider whether or not the statute which provides

13

for the fine is punitive in nature at all. However, after

Bajakajian, the analysis is not as simple as that.

What if the fine serves a remedial purpose as well as

punitive one? What if the fine is considered civil and

not criminal because of the underlying case? Does

this change the punitive nature of the fine? Does it

remove such a fine from the analysis altogether?

After all, the Bajakajian Court specifically found that

early customs statutes that provided for fines equal to

three times the value of the goods not reported, were

purely remedial fines and not subject to analysis

under the Excessive Fines Clause. As Justice Ken-

nedy pointed out how can a statute, designed to

recover the value of goods not reported to customs,

which charges a fine equal to three times the value of

the goods not be considered, at least in part, to be

punitive.

Furthermore, in any case involving an adminis-

trative fine in which an appellant challenges the

excessiveness of the fine, a court simply has to con-

clude that the fine is remedial in nature and there

would be no review under the Excessive Fines Clause.

In fact, that is exactly what happened in this case.

The 5th District Court of Appeals for the State of

Ohio specifically stated that “while [Meadowlake

contend] that the penalty imposed is excessive and

thus violates the Eighth Amendment to the United

States Constitution, the Eighth Amendment gener-

ally applies to criminal matters, not to civil matters.”

See App. 25 at 968. However, this proposition was

expressly rejected in Austin: “Thus, the question is

14

not ... whether forfeiture ... is civil or criminal, but

rather whether it is punishment.” Austin, supra at

610. As Justice Kennedy noted in his dissent, an

entire important class of fines may be removed from

the excessiveness inquiry altogether.

In the end, there is confusion over whether the

potential excessiveness of a civil, administrative fine

can be analyzed under the Excessive Fines Clause.

Must the fine be purely punitive? Can the fine be

punitive and remedial in nature and still be ana-

lyzed? Or, are such fines excluded altogether from the

analysis? But then, how can this be the case when

this Court has specifically defined “fine” as the pay-

ment to a sovereign for some offense? This case

presents the opportunity for the Court to answer

these questions and provide guidance to the lower

courts.

Il. IF THE COURT ANSWERS THE PRECED-

ING IN THE AFFIRMATIVE, THIS CASE

ALSO PRESENTS THE OPPORTUNITY

FOR THE UNITED STATES SUPREME

COURT TO SET FORTH THE ANALYSIS

THAT SHOULD BE USED WHEN THE ExX-

CESSIVE FINES CLAUSE IS APPLIED TO

AN ADMINISTRATIVE FINE.

Assuming arguendo that the Excessive Fines

Clause does apply to civil, administrative fines, then

the next question becomes “what standard applies?”

This Court has made it clear that, when judging

excessiveness under the Clause, the most important

ad

15

question is proportionality of the fine to the offense

for which the fine is imposed. However, the Circuit

courts and the District courts that have analyzed the

excessiveness of these types of fines have used a

range of analyses in coming to their conclusions. In

addition, the issue arises as to the interplay between

the U.S. Civil Penalty Policy and the Court’s opinions

in Austin and Bajakajian. Again, this case presents

the opportunity for this Court to answer these ques-

tions.

The court in U.S. ex rel. Tyson v. Amerigroup

Illinois, Inc., 488 F.Supp.2d 719 (N.D. Ill. 2007) ana-

lyzed a fine using Austin and Bajakajian and applied

the Court’s dicta from Bajakajian in determining

proportionality. Specifically, the Tyson court looked at

the extent and nature of the harm caused; the possi-

ble maximum penalty; and the class of persons for

whom the statute was designed. Jd. at 744, citing

Bajakajian, supra, at 339-40.

However, in Towers v. City of Chicago, 173 F.3d

619 (7th Cir. 1999), the court applied a “gross dispro-

portionality” test as called for in Bajakajian. But, in

determining whether a fine was in fact grossly dis-

proportionate the court also considered four factors

that differed from Tyson and are not mentioned

specifically in Bajakajian: the gravity of Towers’

violations; Towers’ level of culpability; the harm

caused by Towers’ violations; and a comparison of the

fine to the gravity of Towers’ violations. Furthermore,

the court in Cox for U.S. Senate Committee, Inc. v.

Federal Election Commission, 2004 WIL 783435 (N.D.

16

Ill. Jan. 22, 2004) likewise applied the Towers’ factors

in its consideration of the excessiveness of a fine.

In U.S. v. Nevada Power Company, 1990 WL

149660 (D. Nev. June 1, 1990), a case which pre-dates

both Austin and Bajakajian, the court still applying a

proportionality standard consistent with the U.S.

Supreme Court’s other holdings in criminal cases,

also looked at the gravity of the conduct which gave

rise to the fine as well as a comparison between civil

and criminal penalties within the same jurisdiction to

civil and criminal penalties from other jurisdictions.

Id. at *5. See generally Solem v. Helm, 463 U.S. 277,

103 S. Ct. 3001, 77 L. Ed. 2d 637, upon which the

Bajakajian court somewhat relies.

In U.S. v. Production Plated Plastics, Inc., 1992

WL 397725 (W.D. Mich. Sept. 4, 1992), the district

court stated that “as a general rule, however, civil

penalties designed with both retributive and deter-

rent goals in mind are not unconstitutional.” Jd. at

*8, and citing U.S. v. Halper, 490 U.S. 435, 109 S. Ct.

1892, 104 L. Ed. 2d 487 (1989), overruled on other

grounds by Hudson v. U.S., 522 U.S. 93, 118 S. Ct.

488, 139 L. Ed. 2d 450 (1997). However, on appeal to

the 6th Circuit, that court analyzed the Resource

Conservation and Recovery Act (“RCRA”) fine under

the Eighth Amendment. U.S. v. Production Plated

Plastics, Inc., 61 F.3d 904, 1995 WL 428451 at *4

(1995). It affirmed the lower court’s decision by

comparing the defendant’s fine with other fines in the

environmental arena while at the same time ques-

tioning whether the Excessive Fines Clause even

17

applied to a RCRA civil penalty. Jd. at *4-*5. Notably,

this case was decided after Austin.

Finally, there is Newell Recycling Company, Inc.

v. U.S. Environmental Protection Agency, 231 F.3d

204 (5th Cir. 2000) and Kelly v. U.S. Environmental

Protection Agency, 203 F.3d 519 (7th Cir. 2000), both

decided after Bajakajian. In Newell, the court an-

nounced that “no matter how excessive (in lay terms)

an administrative fine may appear, if the fine does

not exceed the limits prescribed by the statute au-

thorizing it, the fine does not violate the Eighth

Amendment.” Newell, supra, at 210. Likewise, the

Kelly court stated that it would not find that a fine

was a excessive under the Eighth Amendment when

“Congress has made a judgment about the appropri-

ate punishment.” Kelly, supra, at 524. Although the

Bajakajian court notes that deference should be given

to the statutory scheme imposed by Congress, this

was not intended to eviscerate a court’s role in the

system of checks and balances.”

So, utilizing the above cases, a court can employ

several methods for analyzing a fine under the Exces-

sive Fines Clause. It can use the factors in Bajaka-

Jian, the factors in Tyson, the factors in Towers, or the

factors in Nevada Power. Or, it can avoid the analysis

* It should be noted that the Kelly court appears to accept

the fact that the Excessive Fines Clause analysis applies to civil,

administrative fines (as they are in the form of a “punishment”)

but they categorically deny that the Excessive Fines Clause

could ever be used to strike a fine permitted by Congress.

18

altogether by holding that if a fine is within the range

set forth by Congress it is not excessive (Newell and

Kelly) or that the Excessive Fines Clause does not

apply to civil fines at all (Production Plated Plastics I

or Ohio’s 5th District Court of Appeals).

Finally, what are courts to make of the US.

EPA’s Civil Penalty Policy as found in the Clean

Water Act, 22 U.S.C. §309(d). That portion of the

Clean Water Act states that a court may consider (1)

the seriousness of the violation or violations, (2) the

economic benefit (if any) resulting from the violation,

(3) any history of such violations, (4) any good-faith

efforts to comply with the applicable requirements,

(5) the economic impact of the penalty on the violator,

and (6) such other matters as justice may require. Of

these six factors, only the first is mentioned in Baja-

kajian. As such, a court reviewing a fine for exces-

siveness: now has the statutory factors contained

within the Clean Water Act to consider as well.

In fact, in the lower court, Meadowlake asked the

court for consideration of these factors, especially the

economic impact of the penalty of the violator, i.e.

Meadowlake’s ability to pay. Such a request was

supported oy the Ohio Supreme Court case of Brown

v. Dayton Malleable Iron, 1 Ohio St.3d 151, 438

N.E.2d 120 (1982) which stated that the ability to pay

was a significant factor in assessing a fine. /d. at 159.

In a case where an arbitrary fine is imposed, i.e. a

situation where there is no forfeiture of property or

cash used in the commission of a crime, there is no

remedial fine imposed to reimburse the government

19

for damage done by the violator, and where the fine is

based upon a fairly wide range of acceptable penalties

contained within a statutory scheme, Meadowlake

requested the lower court to consider its ability to pay

when analyzing the excessiveness of the fine.

After all, the gross proportionality test contem-

plated in Bajakajian can be applied rather easily in

the cases of criminal forfeiture because there is a

basis upon which to judge proportionality. In other

words, the Court had before it the fact that Bajaka-

jian was ordered to forfeit every penny with which he

had tried to leave the country. The basis, then, to

judge proportionality was $357,144.00. This variable

in the excessiveness analysis was, in essence, a

constant given the facts of the case. However, when

dealing with a civil, administrative fine, where Con-

gress permits “up to” a certain amount for each

violation for each day, the courts are vested with a

broad range of discretion. The variables are many for

a court and different courts may arrive at different

fines for the same conduct. Likewise, the fine in

administrative cases is not tied to a particular

amount of damage caused by the violator or a dis-

gorgement of property from a criminal defendant.

This then begs the question, upon what factors are

the courts to begin the analysis of proportionality?

That question is answered, in part, by the factors

set forth in the Clean Water Act, but which factors

are not found in the Court’s previous Excessive Fines

Clause cases. Of particular importance to Meadow-

lake is its inability to pay the $300,000.00 fine

20

imposed upon it. Nowhere is it alleged that Meadow-

lake caused $300,000.00 of damage to the State of

Ohio nor is it alleged that somehow Meadowlake

profited by that amount through its violative conduct.

The fine is arbitrary, although granted it is within the

permitted statutory scheme.

Again, the varying analyses could lead to varying

results. A court reviewing the excessiveness of Mead-

owlake’s fine in this case could consider the nature

and extent of the harm caused and find it excessive or

may emphasize the fact that the protection of the

environment is tantamount and find the fine accept-

able. A court may compare Meadowlake’s fine with

similar fines assessed to other companies for the

same conduct and find that it is appropriate, or the

court may determine that because this particular

company cannot afford the fine (where another com-

pany could), the fine is excessive. Finally, the court

could decline to pass judgment on the excessiveness

of the fine altogether for the reasons set forth above.

All of these conclusions, in one way or another, could

be justified by the cases cited herein. As such, this

case presents this Court with the opportunity to set

forth particular standards as to how to analyze a

civil, administrative fine under the Excessive Fines

Clause.

21

lil. THIS CASE PRESENTS SIGNIFICANT

QUESTIONS WITH RESPECT TO THE

DENIAL OF MEADOWLAKE’S DUE PROC-

ESS RIGHTS UNDER THE FOURTEENTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION.

Due process requires that a party whose rights

are sought to be affected be afforded a full hearing

with the opportunity to introduce evidence on one’s

behalf and have judicial findings based upon it.

Jennings v. Mahoney, 404 U.S. 25, 26, 92 S. Ct. 180,

30 L. Ed. 2d 146 (1970). “The fundamental require-

ment of due process is the opportunity to be heard at

a meaningful time and in a meaningful manner.”

Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779, 58

L. Ed. 1363 (1914). Due process implies the right to

contradict by proof every material fact which bears on

the question of the rights involved. Jennings, supra.

There is no hearing, in the constitutional sense,

where the party is not given a meaningful opportu-

nity to test, explain, or refute evidence. Jd. at 26;

Jenkins v. McKeithen, 395 U.S. 411, 428, 89 S. Ct.

1843, 23 L. Ed. 2d 404 (1969). The right to present

evidence is essential to a fair hearing required by the

Due Process Clause. Jenkins, supra, at 429. In the

case at hand, Meadowlake was denied the opportu-

nity to present evidence, to cross-examine witnesses,

and to otherwise participate in the evidentiary hear-

ing on the merits. The denial of these basic funda-

mental rights to defend oneself in court is an obvious

denial of Meadowlake’s due process rights.

22

The appellate court stated that “as an initial

matter, we note that [Meadowlake] never filed a

written motion for continuance of the May 30, 2006

trial.” App. 12. The court could not have considered

such a motion even if Meadowlake had so moved,

because, was an unrepresented corporate defendant,

the trial court could not have entertained the motion.

Ohio Revised Code §4705.01 prohibits anyone from

practicing law or commencing or defending an action

in which he or she is not a party concerned unless he

or she has been admitted to the bar by order of the

Supreme Court of Ohio. Furthermore, a corporation

cannot maintain litigation or appear in Court through

an officer of the corporation or an appointed agent

who is not admitted to the practice of law. Union

Savings Assn. The Homeowners Aid, 23 Ohio St. 2d

60, 262 N.E.2d 558 (1970).

A corporation has a Sixth Amendment right to

counsel. U.S. v. Rad-O-Lite of Philadelphia, Inc., 612

F.2d 740, 743 (1979), citing generally Powell v. Ala-

bama, 287 U.S. 45, 68-69, 53 S. Ct. 55, 77 L. Ed. 158

(1932). The Sixth Amendment right to counsel in-

cludes criminal and quasi-criminal proceedings.

Hannah v. Larche, 363 U.S. 420, 440 n.16, 80 S. Ct.

1502, 4 L.Ed. 2d 1307 (1960). The term “quasi-

crimina]” has been defined as follows:

Laws that provide for punishment but are

civil rather than criminal in form have

sometimes been labeled “quasi-criminal” by

the Supreme Court. These laws, broadly

speaking, provide for civil money penalties,

23

forfeitures of property, and the punitive im-

position of various disabilities, such as the

loss of professional license or public employ-

ment.

Savina Home Industries Inc. v. Secretary of Labor,

594 F.2d 1358, 1362 (1978), citing Clark, Civil and

Criminal Penalties and Forfeitures: A Framework

for Constitutional Analysis, 60 Minn.L.Rev. 379, 381

(1976).

Under this analysis, because the case at the trial

court level provided for punishment in the form of

civil money penalties, the case was of a quasi-

criminal nature. The Sixth Amendment right to

counsel extends to quasi-criminal matters. As such,

Meadowlake had a Sixth Amendment right to counsel

at the trial court level. By denying Meadowlake the

opportunity to secure new counsel prior to the eviden-

tiary hearing, by denying Meadowlake’s request for a

continuance, and by knowing that Meadowlake could

not represent itself, the trial court, essentially, left

Meadowlake with no other option but to proceed to

trial unrepresented. As set forth above, this denied

Meadowlake its Sixth Amendment right to counsel

and violated Meadowlake’s due process rights under

the Fourteenth Amendment. For these reasons,

Meadowlake’s petition should be granted.

*

24

CONCLUSION

This case presents the United States Supreme

Court with the opportunity to determine whether or

not the Excessive Fines Clause applies to civil, ad-

ministrative fines and, if so, what analysis a court

should utilize. It presents the chance to clear up the

disparate analysis between Austin, supra, and Baja-

kajian, supra, and to settle the manner in which

lower courts are to apply the Excessive Fines Clause’s

“grossly disproportional” standard. Finally, this case

presents the opportunity for the Court to remedy the

due process violations suffered by Meadowlake.

Accordingly, Petitioners, Meadowlake Corporation

and Meadowlake Limited, LLC respectfully request

the Court to grant its petition for certiorari.

Respectfully submitted,

ROBERT E. SOLES, JR.

Counsel of Record

FAITH R. DYLEWSKI

KARA DODSON

LAW OFFICE OF ROBERT E.

SOLES, JR., Co. LPA

6545 Market Avenue, North

North Canton, Ohio 44721

Tel: (330) 244-8000

Fax: (330) 244-8002

E-mail: fdylewski@soleslaw.com

Counsel for Petitioners,

Meadowlake Corporation, et al.

App. 1

The Supreme Court of Ohio

State of Ohio ex rel. Mark Dann, Case No. 2008-0247

Attorney General of Ohio ENTRY

i (Filed May 21, 2008)

Meadowlake Corporation et al.

Upon consideration of the jurisdictional memo-

randa filed in this case, the Court declines jurisdic-

tion to hear the case and dismisses the appeal as not

involving any substantial constitutional question.

(Stark County Court of Appeals; No. 2006CA00252)

/s/ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

App. 2

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel.

MARK DANN, : JUDGES:

ATTORNEY GENERAL _ .: William B. Hoffman, P.J.

OF OHIO - Sheila G. Farmer, J.

Plaintiff-Appellee - Julie A. Edwards, J.

alas ; Case No. 2006 CA 00252

MEADOWLAKE , OPINION

CORPORATION, et al. : (Filed Dec. 17, 2007)

Defendants-Appellants é |

CHARACTER Civil Appeal From

OF PROCEEDING: Stark County Court

Of Common Pleas

Case No. 2004CV01672

ve _DGMENT: Affirmed

DATE OF

JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

GREGORY POULOS ROBERT E. SOLES, Jr.

ASSISTANT ATTORNEY KEVIN C. COX

GENERAL OF OHIO KARA DODSON

30 E. Broad Street, FAITH R. DYLEWSKI

25th Floor 6531 Market Avenue, N.,

Columbus, Ohio 43215 Ste. 100

North Canton, Ohio 44721

App. 3

Edwards, J.

{{1} Defendant-appellants Meadowlake Corpo-

ration and Meadowlake Limited, LLC appeal from

the August 4, 2006, Judgment Entry of the Stark

County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

{{2} Meadowlake Golf and Swim Club consists

of a golf course, a swimming pool, a pro shop, a res-

taurant, a snack shop and a banquet facility. Prior to

the construction of the golf course, which started in

1963 as a nine hole course, the Barr family operated a

dairy farm on the subject property. The dairy barn

was converted into a clubhouse.

{43} Currently, Meadowlake Golf and Swim

Club is operated by appellant Meadowlake, Ltd.,

which came into legal existence in 2001, whereas

appellant Meadowlake Corporation owns the land on

which the club and golf course are located. Roy Barr

is the Chief Executive Officer of both Meadowlake

Corporation and Meadowlake Ltd. A well located in

the basement of the farmhouse supplies water to the

farmhouse, the pool house, and the club house.

{]4} In approximately 1995, the Ohio Environ-

mental Protection Agency (“Ohio EPA”) determined

that appellant Meadowlake Corporation owned and

operated a “public water system” on the subject

property and, therefore, was required to obtain an

operational license from the Ohio EPA. Appellant

App. 4

Meadowlake Corporation obtained licenses to operate

a public water system on the subject property in 1996

through 1998. However, neither appellant Meadow-

lake Corporation nor Meadowlake Ltd., have applied

for or been granted such a license since such time.

{75} Thereafter, in August of 1999, the Director

of the Ohio EPA issued a proposed action designating

the public water system on appellants’ property as a

source of water “under the influence of surface water.”

Prior to such time, the well source classification had

been “Ground Water.” The Ohio EPA, via a letter

issued on August 11, 1999, with an effective date of

September 27, 1999, designated the water source at

Meadowlake Golf & Swim Club as a surface water

source. As a result of such designation, the monitor-

ing and treatment requirements for the water system

changed. Whereas, prior to such designation, Mead-

owlake Golf & Swim Club had to provide one bacteria

sample per quarter and a nitrate sample once a year,

after such designation, Meadowlake Golf & Swim

Club was required to provide four bacteria samples a

month and a nitrate sample every month. In addition,

the letter sent to Meadowlake Golf and Swim Club

advised appellants that they had 18 months, or until

April of 2001, to exercise one of five options to bring

the public water system at the Meadowlake property

into compliance. The five options were as follows:

{76} “a. installation of approved filtration

treatment and disinfection which complies with OAC

Rule 3745-81-73;

App. 5

{{7)} “b. eliminating the construction and

isolation defects of your existing well(s) so that it

(they) may be re-evaluated and redesignated as

ground water;

{78) “c. abandonment of those wells desig-

nated as surface water and installation of adequate

approved ground water sources;

{79} “d. abandonment of your surface water

source(s) and installation of an approved hauled

water system; or

{¥10} “e. abandonment of your surface water

source(s) and purchasing water from an approved

public water system.”

{¥11} From November of 1999 on, the Ohio EPA

sent numerous letters to Ray Barr of Meadowlake

Golf and Swim Club advising him that Meadowlake’s

public water system was in violation of the Ohio

Administrative Code.

{¥12} On or about February 23, 2001, the Ohio

EPA sent Meadowlake Golf and Swim Club a warning

letter stating that, by March 27, 2001, it was required

to make changes in its system and “receive a ground

water designation for your sources or install surface

water treatment.”

{¥13) On or about May 7, 2002, the Director of

the Ohio EPA issued a document captioned “Director’s

Unilateral Administrative Findings and Orders” to

Roy Barr, as owner of Meadowlake Golf & Swim Club,

stating, in relevant part, as follows:

App. 6

{714} “I am writing with regard to the violations

of Ohio’s safe drinking water rules at the Meadow-

lake Golf & Swim’s public water system. Specifically,

you have failed to comply with source water designa-

tion requirements, failed to install filtration treat-

ment, failed to monitor for total coliform bacteria and

nitrate, failed to prepare and maintain a written

sample siting plan, failed to issue public notices, and

operated a public water system without a license.

These violations present a serious health risk to

Meadowlake Golf & Swim’s consumers.”

{15} In response, Roy Barr filed a Notice of

Appeal challenging the “Director’s Unilateral Admin-

istrative Findings and Orders”. The Director revoked

his unilateral findings and orders on September 23,

2003 and Roy Barr’s pending appeal was dismissed.

{416} Subsequently, on May 19, 2004, the State

of Ohio filed a compiaint against appellants alleging

that they owned and operated a public water system

and were in violation of Chapters 6109 and 6111 of

the Ohio Revised Code and regulations adopted

thereunder for failing to maintain a public water

license, failing to maintain a written sample siting

plan, and failing to sample the water adequately for

both nitrates and bacteria. The State of Ohio further

alleged that appellants had failed to notify the public

of the violations and had violated water well stan-

dards. The State of Ohio, in its complaint, sought

both injunctive relief and a civil penalty of $25,000.00

a day for each day there has been a violation. The

State of Ohio specifically sought to enjoin appellants

App. 7

to achieve compliance with water well standards and

with regulations concerning surface water. The State

of Ohio also sought to enjoin appellants to obtain and

maintain a license to operate a public water system,

among other matters.

{917} On July 19, 2004, Roy E. Barr, as Trustee

of the Roy E. Barr Living Trust, filed a motion to

intervene as a defendant. Barr, in his motion, indi-

cated that he was the sole owner of appellant Mead-

owlake Corporation and, in his individual capacity,

owned 99% of appellant Meadowlake, Ltd. The trial

court granted such motion pursuant to a Judgment

Entry filed on September 2, 2004.

{718} The trial court, over the State’s objection,

bifurcated the case and, on January 9, 2006, a jury

trial commenced on the sole issue of whether appel-

lants owned or operated a public water system.

However, the trial court declared a mistrial, finding,

in a “Declaration of Mistrial” filed on January 13,

2006, that the “inappropriate and extra-issue scope of

the comments of Roy Barr prejudiced the jury to such

an extent that ‘the ends of public justice’ could not be

attained in this matter without discontinuing the

trial.”

{419} An Assignment Notice was filed on

March 9, 2006, setting the matter for a new jury

trial on May 30, 2006. On the same day, appellants’

counsel filed a motion for leave to withdraw as

counsel for appellants, indicating that appellants

had failed to make any payments on their account

App. 8

since mid-January and had “failed to make any

satisfactory provisions for payment of their substan-

tial account balance ... despite written and oral

requests to do so.” Roy E. Barr, in a letter to the trial

court dated March 10, 2006, and filed on March 14,

2006, indicated that appellants’ counsel’s employment

was terminated on the day such counsel had filed the

motion to withdraw. On the same day, appellants,

through Ray E. Barr, filed a response indicating that

they had no objection to their counsel’s request to

withdraw. Appellants, in their response, indicated

that Roy E. Barr was out of the state during the

winter months for health reasons and that they

would retain a new attorney once he returned to Ohio

on April 20, 2006. Appellants’ counsel, on March 20,

2006, filed a Notice of Withdrawal as counsel.

{¥20} As memorialized in an Order file on

March 23, 2006, the trial court granted the Motion for

Leave to Withdraw as counsel. The trial court, in its

order, noted that appellants, as corporate entities,

could not proceed in court without being represented

by counsel. The trial court, in its Order, further

stated, in relevant part, as follows:

{21} “Theretore, the Defendants are ordered to

immediately secure the representation of other coun-

sel in order to proceed in this matter, or if they choose

to waive the representation of counsel to understand

that any non-attorney even though an officer of any

of the Defendant corporations or an appointed agent

of any of the Defendant corporations could not file

pleadings, present further defense regarding the

4

App. 9

issue before the court, or otherwise represent the

interests of the corporate defendants.”

{{22} On May 16, 2006, the State of Ohio filed a

motion asking the trial court to reconsider it decision

allowing the jury to hear any part of the case. The

State of Ohio, in its motion, indicated, in part, that

appellants did not have a right to a jury trial on any

issue in the case sub judice under either common law

or under the statute under which the action had been

brought. The trial court, pursuant to an Order filed

on May 19, 2006, sustained such motion and ordered

that a bench trial] be held on May 30, 2006.

({23} At the trial on May 30, 2006, appellants,

who were not represented by counsel, were not per-

mitted to cross-examine the witnesses, offer evidence,

make objections, or in any way participate or defend

themselves. At the conclusion of the trial, the trial

court took the matter under advisement and asked

the State of Ohio to submit written findings of fact

and conclusions of law.

{424} Subsequently, on July 11, 2006, appel-

lants, who had since secured counsel, filed a Motion

for an Evidentiary Hearing. Appellants, in their

motion, asked for an order permitting them to pre-

sent evidence prior to the required post trial briefing.

Appellants argued that, “due to the short timeframe

and the complex environmental nature of the subject

matter”, they had been unable to retain replacement

counsel in time for the May 30, 2006, trial. The trial

court, as memorialized in a Judgment file on August

App. 10

1, 2006, overruled such motion, stating, in relevant

part, as follows:

{25} “Being advised in the premises, the mo-

tion and briefs of counsel, the court does not find the

Defendants’ motion well taken and overrules the

same. The Defendants, having been advised of the

consequences of their failure to hire new counsel to

appear at the May 30, 2006 trial delayed such hiring

themselves. The attorney, whom the Defendants state

was unavailable to appear at the trial due to serious

personal injuries, had never entered an appearance

in this matter and was never counsel of record in the

action. Prejudice to the Defendants, if any, was

caused by their own acts. The Defendants here, in

fact, are requesting a post-trial continuance of the

matter.”

{926} Thereafter, pursuant to a Judgment Entry

filed on August 4, 2006, the trial court found that

appellant “Meadowlake Corporation and/or [appel-

lant} Meadowlake Ltd. own(s) and/or operate(s) a

‘public water system’ as such term is defined in R.C.

6109.01(A) and Ohio Administrative_Code (O.A.C.)

3745-81-01(FFF).” The trial court further found that

appellant Meadowlake Corporation and/or appellant

Meadowlake Ltd had violated R.C. Chapter 6109 and

rules adopted under the authority of the same and/or

orders issued by the Ohio EPA by, among other mat-

ters, operating without a public water system license

and failing to collect total coliform routine samples

and monitor for the presence of coliform bacteria once

each calendar year. The trial court ordered appellants

App. 11

Meadowlake Corporation and Meadowlake Ltd.,

jointly and severally, to pay $300,000.00 in civil

penalties and also granted the injunctive relief re-

quested by the State of Ohio. The trial court, it its

entry, found that such appellants had committed

more than 1,000 intentional violations of R.C. Chap-

ter 6109. The trial court ordered appellants to obtain

a public water system license, to comply with surface

water treatment rules and water well standards, and

to monitor the water supply, among other matters.

{¥27} Appellants now raise the following as-

signments of error on appeal:

{428} “I. THE TRIAL COURT ERRED BY

PROCEEDING TO TRIAL ON MAY 30, 2006, WITH

THE KNOWLEDGE THAT MEADOWLAKE DE-

FENDANTS WERE UNREPRESENTED BY COUN-

SEL FOR REASONS BEYOND THEIR CONTROL.

{¥29) “II. THE TRIAL COURT ERRED BY

DENYING APPELLANTS’ MOTION FOR EVIDEN-

TIARY HEARING THEREBY DENYING APPEL-

LANTS THE OPPORTUNITY TO PROFFER

EVIDENCE, CROSS EXAMINE WITNESSES, PRE-

SERVE ERRORS, OR OTHERWISE DEFEND THEIR

POSITION.

{¥30) “Ill. THE TRIAL COURT ERRED BY

DENYING APPELLANTS DEMAND FOR JURY

TRIAL.

{431} “IV. THE PENALTIES THAT THE

TRIAL COURT AWARDED TO THE OHIO EPA ARE

App. 12

EXCESSIVE, ARBITRARY, INAPPROPRIATE, AND

IN VIOLATION OF APPELLANTS’ DUE PROCESS

RIGHTS.”

I

{732} Appellants, in their first assignment of

error, argue that the trial court erred by proceeding to

trial on May 30, 2006, when it knew that appellants

were unrepresented by counsel “for reasons beyond

their control.” We disagree.

{733} As an initial matter, we note that appel-

lants never filed a written motion for a continuance of

the May 30, 2006, trial. However, appellants now

argue that the trial court should not have proceeded

with the trial when they did not have sufficient time

to retain substitute counsel after their former counsel

withdrew. Appellants note that, in the spring of 2006,

they contacted D. Patrick DeBoer, who had served as

appellants’ counsel in corporate matters, to represent

them in the case sub judice and that because DeBoer

was involved in a skiing accident on or about April 18,

2006, he was unable to represent appellant in the

trial scheduled for May 30, 2006.

{734} As is stated above, appellants’ first trial

was declared a mistrial due to the behavior of Roy E.

Barr. On March 9, 2006, the same day that a notice

was issued setting a new trial date of May 30, 2006,

appellants’ counsel filed a motion to withdraw on the

basis that appellants had not only failed to make any

payments on their substantial account balance but

App. 13

also “failed to make any satisfactory provisions for

payment of their substantial account balance ...

despite written and oral requests to do so.” At such

point in time, the trial was approximately eighty (80)

days away. While appellants now contend that they

did not know that they could oppose the motion to

withdraw, in a pro se response filed on March 14,

2006, they stated that they did ‘not object to their

counsel’s withdrawal and that they would retain new

counsel once Roy E. Barr returned to Ohio on April

20, 2006.

{935} The trial court, in its March 23, 2006,

order, which was sent to all appellants, advised

appellants that they needed to immediately secure

counsel because corporate entities, by law, can only be

represented by an attorney. However, as noted by the

trial court in its August 4, 2006, Judgment Entry, no

counsel ever entered an appearance on appellants’

behalf or requested a stay of the proceedings.

{936} Based on the foregoing, we find that,

contrary to appellants’ argument, appellants’ lack of

counsel was not due to extenuating circumstances

beyond their control. As noted by appellee, appellants’

deliberate actions led to the withdrawal of their

former attorney. While appellant had approximately

eighty (80) days to secure new counsel, they failed to

do so. We find, therefore, that the trial court did not

err by proceeding to trial when it knew that appel-

lants were unrepresented by counsel.

App. 14

{{37} Appellants’ first assignment of error is,

therefore, overruled.

Il

{{38} Appellant, in their second assignment of

error, argue that the trial court erred in denying their

July 11, 2006, Motion for an Evidentiary Hearing. We

disagree.

{739} As is stated above, after the May 30,

2006, trial in this matter but before the trial court

issued its decision, appellants, on July 11, 2006,

through newly retained counsel, filed a motion re-

questing an order permitting appellants “to present

evidence prior to the required post trial briefing in

this matter ... to permit [appellants] an opportunity

to present evidence in this matter as the same oppor-

tunity was not available at trial due to circumstances

beyond [appellants’] control.” The trial court over-

ruled such motion noting, in part, that appellants

were, in fact, requesting a post-trial continuance.

Appellants now maintain that they were denied their

due process rights’ to introduce evidence and cross-

examine witnesses.

" In the case of Szerlip v. Szerlip, Knox App. No. 01CA16,

2002-Ohio-2540, 2002 WL 1270849, we held: “The Ohio Consti-

tution, Section 16, Article I, undeniably affords the parties in a

civil case the right to due process of law, the ‘basic thrust’ of the

clause being a requirement for notice and an ‘opportunity to be

heard.’ See Ohio Vailey Radiology Assoc., Inc. v. Ohio Valley

(Continued on following page)

App. 15

{740} As is discussed above with respect to

appellants’ first assignment of error, we find that the

withdrawal of appellants’ original attorney and their

failure to retain new counsel were not “circumstances

beyond [appellants’] control”. Appellants’ own actions,

rather than the actions of the trial court, resulted in

their non-representation by counse] at trial. Based on

the facts, it would be patently unfair to allow appel-

lants to, in effect, participate in the trial by submit-

ting evidence after the fact.

{941} Appellants’ second assignment of error is,

therefore, overruled.

III

{942} Appellants, in their third assignment of

error, contend that the trial court erred in denying

their demand for a jury trial. We disagree.

{743} Pursuant to Section 5, Article I of the

Ohio Constitution, “[t]he right of trial by jury shall be

inviolate[.] However, as noted by the Ohio Supreme

Court in Arrington v. DaimlerChrysler Corp., 109

Ohio St.3d 539, 2006-Chio-3257, 849 N.E.2d 1004,

“(t]he right to a jury triai is not, however, absolute.

The Constitution does not entitle all civil litigants to

a trial by jury. Instead, it preserves the right only for

those civil cases in which the right existed before the

Hosp. Assn. (1986), 28 Ohio St.3d 118, 124-125 [28 OBR 216],

502 N.E.2d 599. Szerlip at p. 5.

App. 16

adoption of the constitutional provision providing the

right.” Id at paragraph 22.

{744} Pursuant to Article I, Section 5, of the

Ohio Constitution and Section 2311.04 of the Ohio

Revised Code, a demand for a money judgment usu-

ally entitles a plaintiff to a jury trial. However, a

plaintiff has no right to a jury trial, however, for the

resolution of equitable claims, and a trial court may

itself resolve those claims. Ohio Bd. of Dietetics v.

Brown (1993), 83 Ohio App.3d 242, 247, 614 N.E.2d

855. In an action seeking an injunction, there is no

right to a jury trial because such an action is equita-

ble in nature. See State ex rel. Miller v. Anthony, 72

Ohio St.3d 132, 1995-Ohio-39, 647 N.E.2d 1368.

When a case presents both a legal and equitable

claim for relief, and the money demand is “incidental

and ancillary” to the equitable claim and can be

awarded only if the equitable relief is granted first,

then the case is predominantly an equitable action,

for which no jury trial is required. Murello Constr. Co.

v. Citizens Home Savings Co. (1985), 29 Ohio App.3d

333, 334, 505 N.E.2d 637 (holding that a jury trial

was not required when the money demand, although

specific, was “incidental and ancillary” to the equita-

ble relief requested and would ripen only if equitable

relief were granted);, citing Pyromatics, Inc. uv.

Petruziello (1983), 7 Ohio App.3d 131, 134, 454

N.E.2d 588.

{945} In the case sub judice, a right to a jury

trial did not exist upon this type of action prior to the

adoption of the Ohio Constitution of 1802. Actions for

App. 17

the enforcement of water pollution control laws under

R.C. Chapter 6109 did not exist at common law. See,

for example, State of Ohio ex rel., Betty Montgomery

v. Portage Landfill and Development Co. (June 30,

1999), Portage App. No. 98-P-0033, 1999 WL 454623,

concerning R.C. Chapter 6111.’ Therefore, Section 5,

Article I of the Ohio Constitution does not preserve a

right to a jury trial for the type of action filed against

appellants.

{¥46} Moreover, upon our review, we find that

the action instituted by the State of Ohio was primar-

ily equitable in nature. In the case sub judice, the

State of Ohio sought an injunction to prevent appel-

lants from engaging in the same type of violations

that they had been engaging in for a period of years.

It is clear from the complaint that the State’s goal in

bringing this action was to ensure appellants’ compli-

ance with R.C. Chapter 6109 and any regulations

adopted thereunder and to protect the public. The

fact that the State also sought penalties under R.C.

6109.33 does not change our analysis. See State of

Ohio ex rel., Betty Monigomery v. Portage Landfill

and Development Co. (June 30, 1999), Portage App.

No. 98-P-0033, 1999 WL 454623. In such case, the

State sought both injunctive relief and civil penalties

for violations of R.C. Chapter 6111. In holding that

the appellants did not have a right to a jury trial, the

* While Chapter 6109 concerns safe drinking water, Chap-

ter 6111 addresses water pollution control.

App. 18

court, in the Portage Landfill case, stated, in relevant

part, as follows: “The action instituted by the state

was for the enforcement of the laws contained in R.C.

Chapters 3734 and 6111. The relief sought by the

state was primarily equitable in nature, and the

request for the imposition of civil penalties in the

complaint did not convert the action into one for the

recovery of money only with the concomitant right to

a trial by jury. See, e.g., Nozik, 1994 WL 613779, at 4

(wherein this court held that a request for civil penal-

ties was incidental to the injunctive relief sought by

the Ohio Environmental Protection Agency for al-

leged violations of R.C. Chapters 3734 and 6111).” Id

at 6. We find, in the case sub judice, that the claim for

injunctive relief was predominant and that the claim

for penalties was incidental to the same.

{¥47} Appellants’ third assignment of error is,

therefore, overruled.

IV

{7448} Appellants, in their third assignment of

error, maintain that the $300,000.00 in penalties that

the trial court awarded to the Ohio EPA were exces-

sive, arbitrary, in appropriate [sic] and in violation of

appellants’ due process rights. We disagree.

* The complete citation for the Nozik case is Mentor v. Nozik

(Sept. 23, 1994), Lake App. No. 93-L-130, 1994 WL 613779.

App. 19

{749} R.C. 6109.33 states, in relevant part, as

follows: “Any person who violates section 6109.31 of

the Revised Code shall pay a civil penalty of not more

than twenty-five thousand dollars for each violation,

... ” The trial court, in the case sub judice, ordered

appellants Meadowlake Corporation and Meadowlake

Ltd. to pay $300,000.00 “in view of their longstanding

and intentional violations of R.C. Chapter 6109, the

rules adopted under authority of R.C. 6109, and/or

orders issued by the Director of the Ohio Environ-

mental Protection Agency, ... ” The trial court or-

dered that Meadowlake Corporation and Meadowlake

Ltd. were jointly and severally liable for the

$300,000.00.

{750} Because of the mandatory language

contained in R.C. 6109.33, a trial court has no discre-

tion regarding whether or not to impose a civil

penalty. See State v. Tri-State Group, Inc., Belmont

App. No. 03 BE 61, 2004-Ohio-4441 (construing R.C.

6111.09(A) which contains analogous language to R.C.

6109.33). The amount of the penalty imposed is

within the discretion of the trial court based on the

evidence in the case. Id. In order to find an abuse of

discretion, we must determine that the trial court’s

decision was unreasonable, arbitrary or unconscion-

able, Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 450 N.E.2d 1140.

{{51} As noted by the court in State v. Tri-State

Group, Inc, Belmont App. No. 03 BE 611, 2004-Ohio-

4441, in determining the appropriate amount of a

civil penalty, the trial court should consider the

App. 20

following factors: 1) the harm or threat of harm posed

to the environment by the violations 2) the level of

recalcitrance, defiance, or indifference demonstrated

by the violator of the law (the defendant’s good or bad

faith); 3) the economic benefit gained by the violation;

and, 4) the extraordinary costs incurred in enforce-

ment. Id at paragraph 104, citing to State v. ex rel.

Brown v. Dayton Malleable (1982), 1 Ohio St.3d 151,

153, 438 N.E.2d 120. The court, in Tri State Group,

Inc., further noted that, in determining a penalty, the

trial court must remember that because a civil pen-

alty is an economic sanction designed to deter viola-

tions, the penalty must be large enough to hurt the

offender. Id at paragraph 104.

{752} In the case sub judice, the trial court

found that appellants had violated R.C Chapter 6109,

rules adopted under authority of such Chapter, or

orders issued by the Ohio EPA as follows:

{753} “a. By operating, from 1999 to May 30,

2006, a ‘public water system’ in Ohio, without a

public water system license issued by the Director

Ohio EPA;

{954} “b. By failing, from July 1998 to May 30,

2006, (Meadowlake Corporation) and from May 2001

to May 30, 2006, (Meadowlake Ltd.) to collect total

coliform routine samples at sites which are represen-

tative of water throughout the public water distribu-

tion system located on the Meadowlake property

according to a written sample siting plan;

App. 21

{755} “c. By failing, from April 1995 through

March 2001, (Meadowlake Corporation) to monitor

for the presence of coliform bacteria once each calen-

dar quarter in the Meadowlake property public water

system;

{456} “d. By failing, from April 2001 to Sep-

tember 2005, (Meadowlake Corporation) and from

May 2001 to September 2005, (Meadowlake Ltd.) to

sample the Meadowlake public water system four

times each month for total coliform bacteria;

(957! “e. By failing, from 1996 to 2000, (Mead-

owlake Corporation) to monitor annually to deter-

mine compliance with the maximum contaminant

level for nitrate and from March 27, 2001 to August

2005, by failing to monitor monthly to determine

compliance with the maximum contaminant level for

nitrate and from March 27, 2001 to August 2005, by

failing to monitor monthly to determine compliance

with the maximum contaminant level for nitrate;

{¥58} “f. By failing, from May 2001 to August

2005, (Meadowlake Ltd.) to monitor monthly to

determine compliance with the maximum contamina-

tion level for nitrate;

{759} “g. By failing, from March 27,°2001 to

May 30, 2006 (Meadowlake Curporation) or from

May 2001 to May 30, 2006 (Meadowlake Ltd.) to

either install an approved disinfection and filtration

treatment or in the alternative to provide water for

the Meadowlake property public water system that

would not be subject to the surface water treatment

i.

App. 22

requirements of O.A.C. Rule 3745-81-71 through

3745-81-75;

{¥60} “h. By failing, either classified as a

ground water source or as using a surface water

source, to issue a public notification of its/their failure

to conduct quarterly or monthly total coliform routine

monitoring of the Meadowlake property public water

system — Meadowlake Corporation from April 1995 to

May 30, 2006, and Meadowlake Ltd. From May 2001

to May 30, 2006;

{{61} “i. By failing, either classified as a

ground water source or as using a surface water

source, to issue public notification of its/their failure

to conduct annual or quarterly nitrate monitoring of

the Meadowlake property public water system —

Meadowlake Corporation from July 1966 to May 30,

2006, and Meadowlake Ltd. From May 2001 to May

30, 2006;

{62} “j. By having a well casing for the Mead-

owlake property public water system which termi-

nates less than eight inches above finished grade of

the land outside of the building in which the public

water system source is located; the well is located in

the basement of the former farmhouse and the well

casing terminates more than eight inches below the

outside ground level.”

{63} The trial court, in its August 4, 2006,

Judgment Entry, further noted that the total number

of noncompliance day violations committed by appel-

lants exceeded 1,000.

App. 23

{464} While appellants argue that the penalties

assessed by the trial court are excessive in light of the

fact that no credible threat to the water supply at

Meadowlake Golf & Swim existed and, therefore,

there was no threat to public health, as noted by

appellee, appellants failed to comply with the re-

quired sampling requirements. The trial court spe-

cifically found that appellant failed to complete the

required monthly nitrate testing and the required

four monthly coliform monitoring samples. Appellants

have not challenged such findings on appeal. As noted

by the court in the Tri-State case, when an entity,

such as in the case sub judice, disregards the statu-

tory scheme by failing to sample the water, the Ohio

EPA cannot fully assess the threat of harm.

{965} Appellants further contend that the trial

court should have considered, but failed to do so,

appellants’ financial ability to pay the penalty. Appel-

lants note that, pursuant to the Dayton Malleable

case, which is cited above, the size of a business and

its ability to pay a fine is a “significant factor” to be

considered in determining the amount of a penalty.

According to appellants, because it is a small season-

able business, the amount of the penalty “goes beyond

deterrence and amounts of the most severe form of

punishment, bankruptcy of the Meadowlake Defen-

dants.”

{466} Appellants bore the burden of showing

that the impact of a penalty would be ruinous or

otherwise disabling. United States v. Golf Water Park

Co., Inc. (S.D. Miss. 1998), 14 F.Supp.2d 854, 868.

App. 24

At the trial in this matter, Phillip Barr testified with

respect to the extent of appellants’ business opera-

tions. While there was no testimony as to appellants’

revenues, the burden was on appellants, through

counsel, to present such evidence. Appellants, how-

ever, failed to do so.

{767} In addition, there was evidence before the

trial court that appellants intentionally violated R.C.

Chapter 6109 and that appellants’ violations were

longstanding. Some of appellants’ violations date as

far back as 1995. As noted by the trial court, appel-

lants were repeatedly advised of the violations over

the years and yet failed to remedy the same. The trial

court, in its entry, noted that with respect to some of

the violations, appellant had been notified monthly

over a period of years. Moreover, at the May 30, 2006

trial in this matter, Holly Kaloz of the Ohio EPA

testified, with respect to nitrate sampling that,

Meadowlake was within the top ten in the State of

Ohio with respect to non-compliance. In addition,

while Meadowlake Corporation applied for and re-

ceived license to operate a public water system for the

years 1996 though 1999, after such dates, it failed to

apply for or receive any licenses. As a result of appel-

lants’ violations, the State of Ohio was forced to file

the case sub judice against appellant and incur the

expenses of the same, including the expenses in-

curred during the first trial, which resulted in a

mistrial, and the subsequent trial. In turn, appellants

avoided the costs associated with coliform sampling

and nitrate sampling by failing to conduct such

sampling for over fifty (50) sampling periods.

App. 25

{468} Moreover, while appellants contend the

penalty imposed is excessive and thus violates the

Eighth Amendment to the United States Constitu-

tion, the Eighth Amendment generally applies to

criminal matters, not to civil matters. See Dayton

‘Malleable, supra. at FN5, citing to Ingraham uv.

Wright (1977), 430 U.S. 651, 97 S.Ct. 1401.

{469} In short, we find that the trial court did

not abuse its discretion in assessing a $300,000.00

penalty against appellants. The trial court’s decision

was not arbitrary, unreasonable or unconscionable

based upon the record.

{{70} Appellants’ fourth assignment of error is,

therefore, overruled.

{71} Accordingly, the judgment of the Stark

County Court of Common Pleas is affirmed.

By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

/s/ Julie A. Edwards

/s/ William B. Hoffman

/s/ Sheila G. Farmer

JUDGES

JAE/0625

App. 26

IN THE COURT OF APPEALS

FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel. : JUDGMENT ENTRY

MARK DANN, ATTORNEY :

GENERAL OF OHIO

Plaintiff-Appellee

-VS-

MEADOWLAKE :

CORPORATION, et al. : CASE NO.

Defendants-Appellants : 2006 CA 00252

(Filed Dec. 17, 2007)

For the reasons stated in our accompanying

Memorandum-Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed.

Costs assessed to appellants.

/s/ Julie A. Edwards

/s/ William B. Hoffman __

/s/ Sheila G. Farmer

JUDGES

App. 27

THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

STATE OF OHIO, ex rel. :

JIM PETRO, ATTORNEY : Cask NO.

GENERAL OF OHIO, > 2004 CV 01672

PLAINTIFF, JUDGE LILE

v. ; (Assigned)

MEADOWLAKE ' JUDGMENT ENTRY

CORPORATION, et al., | (Filed Aug. 4, 2006)

DEFENDANTS, _:

This civil action came before the court for trial

upon the Plaintiff’s complaint, filed May 19, 2004, the

Defendants’ joint answer, filed June 10, 2004, and

Plaintiff’s motion for preliminary injunction, filed

March 15, 2005. A counterclaim previously filed by

the Defendants was dismissed by the court on No-

vember 23, 2004.

A jury trial to determine whether the Defendants

were the owners or operators of a Public Water Sys-

tem, was begun on January 9, 2006 and was termi-

nated on January 11, 2006, by declaration of mistrial.

Thereafter, the matter was set for retrial and, upon

further review of the Plaintiff’s previously filed

motions and memoranda to proceed in this matter

without jury, the court determined that the matters

before it in this action were not triable to a jury and

the issues herein were ordered to proceed as a trial to

the court on May 30, 2006.

App. 28

Previously, on March 23, 2006, the court granted

leave to Matthew Yackshaw, Esq., counsel for the

Defendants, to withdraw as counsel for cause, namely

that the Defendants had deliberately failed to make

payment on their account and had failed to make any

satisfactory provisions for payment on their substan-

tial account balance due despite written and oral

requests by counsel to do so. In the same entry, which

was sent to all Defendants, the court advised the

Defendants:

Therefore, the Defendants are ordered

to immediately secure the representa-

tion of other counsel in order to pro-

ceed in this matter, or if they choose to

waive the representation of counsel to

understand that any non-attorney even

though an officer of any of the Defen-

dant corporations or an appointed

agent of any of the Defendant corpora-

tions could not file pleadings, present

further defense regarding the issue be-

fore the court, or otherwise represent

the interests of the corporate defen-

dants.

Prior to the trial of May 30, 2006, no counsel

entered appearance on behalf of the Defendants or

requested a stay of proceedings. Following the trial,

the court took the matter under advisement.

App. 29

Findings of Fact

Upon the evidence presented, the court finds:

1. Defendants, Meadowlake Corporation

and Meadowlake Ltd., invite the public to

patronize a swimming pool, a golf course,

snack bars and a restaurant, all of which are

situated on the Defendants’ property located

at 1211 39th Street, NE, Canton, Ohio, here-

after referred to as the “Meadowlake prop-

erty”.

2. The Ohio Environmental Protection

Agency (“Ohio EPA”) determined, beginning

in the year 1996, that Meadowlake Corpora-

tion owned and operated a “public water sys-

tem” on the Meadowlake property. The Ohio

EPA determined, effective May 2001, the on-

set of its legal existence, that Meadowlake

Ltd. owned and operated a “public water sys-

tem” on the Meadowlake property.

3. The determinations by the Ohio EPA

that the Defendants own and operate a “pub-

lic water system” at the 39th Street NE,

Canton, Ohio, location have not been over-

turned pursuant to the laws of the State of

Ohio.

4. The Defendant Meadowlake Corporation,

in the name of Meadowlake Country Club,

applied for a license to operate a “public wa-

ter system” for the years 1996, 1997, and

1998 and was granted licences [sic] to oper-

ate a “public water system” on the Meadow-

lake property during those years. Neither

App. 30

Meadowlake Corporation since 1999, nor

Meadowlake Ltd. since May 2001, (the onset

of its legal existence) have applied for or

been granted a license to operate a “public

water system”.

5. On August 11, 1999, the Director of the

Ohio Environmental Protection Agency (“Di-

rector Ohio EPA”) issued a proposed action

designating the public water system on the

Meadowlake property as a source of water

“under the influence of surface water”.

Meadowlake Corporation as the owner of the

public water system received notice of the

proposed action and its right to appeal such

proposed action. The proposed action became

final on September 27, 1999.

6. From March 27, 2001, to May 30, 2006

(1,890 days), Defendant, Meadowlake Corpo-

ration did not provide the necessary filtra-

tion treatment for the public water system

on the Meadowlake property and has been

advised monthly of such failure.

7. From May 2001, to May 30, 2006, (1,855

days) Defendant Meadowlake Ltd. did not

provide the necessary filtration for the public

water system on the Meadowlake property

and has been advised monthly of such fail-

ure.

8. From March 27, 2001, to May 30, 2006

(1,890 days), Meadowlake Corporation did

not issue required public notifications after

being advised of its failure to provide surface

water treatment.

App. 31

9. From May 2001, to May 30, 2006, (1,855

days), Meadowlake Ltd. did not issue re-

quired public notifications after being ad-

vised of its failure to provide surface water

treatment.

10. From April 2001 through October 2005,

a total of 51 sampling periods, Meadowlake

Corporation failed to complete the required

four monthly coliform monitoring samples

even though it was advised monthly of such

failure.

11. From May 2001 to October, 2005, a total

of 50 sampling periods, Meadowlake Ltd.

failed to complete the required four monthly

coliform monitoring samples even though it

was advised monthly of such failure.

12. From April 2001, to October 2005,

Meadowlake Corporation did not issue the

required public notifications after being ad-

vised of its failure to provide coliform bacte-

ria samples.

13. From May 2001, to October 2005, De-

fendant Meadowlake Ltd. did not issue the

required public notifications after being ad-

vised of its failure to provide coliform bacte-

ria samples.

14. From April 2001, to August 2005, a to-

tal of 52 sampling periods, Defendant Mead-

owlake Corporation failed to complete the

required monthly nitrate sampling.

App. 32

15. From May 2001, to August 2005, a total

of 51 sampling periods, Defendant Meadow-

lake Ltd. failed to complete the required

monthly nitrate sampling.

16. From April 2001, through October 2005,

Meadowlake Corporation did not issue the

required public notifications after being ad-

vised of its failure to complete monthly ni-

trate monitoring requirements.

17. From May 2001, to October 2005, De-

fendant Meadowlake Ltd. did not issue the

required public notifications after being ad-

vised of its failure to complete monthly ni-

trate monitoring requirements.

18. From July 1998 to May 30, 2006, the

Defendant Meadowlake Corporation failed to

prepare and maintain a written sampling

plan for the collection of total coliform rou-

tine samples at sites which are representa-

tive of water throughout the Meadowlake

property public water system.

19. From May 2001 to May 30, 2006, the

Defendant Meadowlake Ltd. failed to pre-

pare and maintain a written sampling plan

for the collection of total coliform routine

samples at sites which are representative of

water throughout the Meadowlake property

public water system.

20. The well casing for the Meadowlake

property public water system well, which is

located in the basement of a former farmhouse

on the Meadowlake property, terminates less

App. 33

than eight inches above the finished grade of

the land outside the farmhouse.

Conclusions of Law

1. Meadowlake Corporation and/or Meadowlake

Ltd. own(s) and/or operate(s) a “public water system”

as such is defined in R.C. 6109.01(A) and the Ohio

Administrative Code (O.A.C.) 3745-81-01 (FFF).

2. The defendants, Meadowlake Corporation and/or

Meadowlake Ltd. have violated provisions of R.C.

Chapter 6109, rules adopted under authority of R.C.

6109, and/or orders issued by the Director of the Ohio

Environmental Protection Agency, to wit:

a. By operating, from 1999 to May 30, 2006,

a “public water system” in Ohio, without a

public water system license issued by the Di-

rector Ohio EPA;

b. By failing, from July 1998 to May 30,

2006, (Meadowlake Corporation) and from

May 2001 to May 30, 2006, (Meadowlake

Ltd.) to collect total coliform routine samples

at sites which are representative of water

throughout the public water distribution sys-

tem located on the Meadowlake property ac-

cording to a written sample siting plan;

c. By failing, from April 1995 through

March 2001, (Meadowlake Corporation) to

monitor for the presence of coliform bacteria

once each calendar quarter in the Meadow-

lake property public water system;

App. 34

d. By failing, from April 2001 to September

2005, (Meadowlake Corporation) and from

May 2001 to September 2005, (Meadowlake

Ltd.) to sample the Meadowlake public water

system four times each month for total coli-

form bacteria;

e. By failing, from 1996 to 2000, (Meadow-

lake Corporation) to monitor annually to de-

termine compliance with the maximum

contaminant level for nitrate and from

March 27, 2001 to August 2005, by failing to

monitor monthly to determine compliance

with the maximum contaminant level for ni-

trate;

f. By failing, from May 2001 to August

2005, (Meadowlake Ltd.) to monitor monthly

to determine compliance with the maximum

contamination level for nitrate;

g. By failing, from March 27, 2001 to May

30, 2006 (Meadowlake Corporation) or from

May 2001 to May 30, 2006 (Meadowlake

Ltd.) to either install an approved disinfec-

tion and filtration treatment or in the alter-

native to provide water for the Meadowlake

property public water system that would not

be subject to the surface water treatment

requirements of O.A.C. Rule 3745-81-71

through 3745-81-75;

h. By failing, either classified as a ground

water source or as using a surface water

source, to issue a public notification of

its/their failure to conduct quarterly or

monthly total coliform routine monitoring of

App. 35

the Meadowlake property public water sys-

tem — Meadowlake Corporation from April

1995 to May 30, 2006, and Meadowlake Ltd.

from May 2001 to May 30, 2006;

i. By failing, either classified as a ground

water source or as using a surface water

source, to issue public notification of its/their

failure to conduct annual or quarterly nitrate

monitoring of the Meadowlake property pub-

lic water system — Meadowlake Corporation

from July 1966 to May 30, 2006, and Mead-

owlake Ltd. from May 2001 to May 30, 2006;

j. By having a well casing for the Meadow-

lake property public water system which

terminates less than eight inches above fin-

ished grade of the land outside of the build-

ing in which the public water system source

is located; the well is located in the basement

of the former farmhouse and the well casing

terminates more than eight inches below the

outside ground level.

3. The law provides that no person shall violate any

provision of R.C. chapter 6109, any rule adopted

under it, or any order or term or condition of a li-

cense, license renewal, variance, or exemption

granted by the director of environmental protection

under it. Each day of noncompliance is a separate

violation. (See R.C. § 6109.31).

4. The Director Ohio EPA is authorized to investi-

gate or make inquiries into any suspected violation of

R.C. § 6109.31. The attorney general is authorized to

bring an action for injunction or other appropriate

App. 36

action against any person violating or threatening to

violate § 6109.31. Any final order of the director, the

finding of the director, after hearing, is prima-facie

evidence of the facts found therein. (See R.C.

§ 6109.32).

5. Any person who violates section 6109.31 of the

Revised Code shall pay a civil penalty of not more

than twenty-five thousand dollars for each violation

... {See R.C. § 6109.33).

6. The number of noncompliance day-violations

committed by the Defendants, Meadowlake Corpora-

tion and/or Meadowlake Ltd., exceeds one thousand

(1,000) in number.

7. The Defendants’ violations of R.C. chapter 6109,

the rules adopted under the chapter, and orders

issued by the Director Ohio EPA have been inten-

tional.

Judgment

Upon the findings and conclusions made above,

the court finds the issues herein in favor of the Plain-

tiffs and against the Defendants. It is Ordered, De-

creed, and Adjudged, therefore:

1. The Defendants, Meadowlake Cor-

poration and Meadowlake Ltd, which include

entities or businesses carried on under the

names of Meadowlake Golf & Swim, Mead-

owlake Country Club and/or Rafters Bar and

Grille shall, within 30 days, obtain a public

App. 37

water system license pursuant to R.C.

§6109.21 and O.A.C. Rule 3745-84-01 and

shall pay the required license fees, late fees

and interest;

2. The Defendants, Meadowlake Cor-

poration and Meadowlake Ltd, which include

entities or businesses carried on under the

names of Meadowlake Golf & Swim, Mead-

owlake Country Club and/or Rafters Bar and

Grille, shall immediately comply with the

written siting plan for the collection of total

conform bacteria that was submitted to Ohio

EPA on May 30, 2006;

3. The Defendants, Meadowlake Cor-

poration and Meadowlake Ltd, which include

entities or businesses carried on under the

names of Meadowlake Golf & Swim, Mead-

owlake Country Club and/or Rafters Bar and

Grille shall immediately monitor the water

supplied by the Meadowlake “Public Water

System” at least four times each month for

the presence of coliform bacteria and comply

with repeat monitoring and maximum con-

taminant level requirements in accordance

with O.A.C. Rules 3745-81-14 and 3745-81-

21 for as long as the Defendants or either of

them continue(s) to use a surface water

source. Should the Meadowlake “Public Wa-

ter Source be redesignated by Ohio EPA as

ground water, the Defendants shall monitor

quarterly for total coliform bacteria and

comply with repeat monitoring and maxi-

mum contaminant level requirement, in

App. 38

accordance with O.A.C Rules 3745-81-14 and

3745-81-21;

4. The Defendants, Meadowlake Cor-

poration and Meadowlake Ltd, which include

entities or businesses carried on under the

names of Meadowlake Golf & Swim, Mead-

owlake Country Club and/or Rafters Bar and

Grille shall immediately monitor the water

supplied by the Meadowlake “Public Water

System” at least once each month for the

presence of nitrate and comply with confir-

mation monitoring and maximum contami-

nant level requirements in accordance with

O.A.C Rules 3745-81-11 and 3745-81-23 for

as long as the Meadowlake “Public Water

System” continues to use a surface water

source. Should the Meadowlake “Public Wa-

ter System” source be redesignated by Ohio

EPA as ground water, the Defendants shall

monitor for the presence of nitrate annually

and comply with confirmation monitoring

and maximum contaminate level require-

ments in accordance with O.A.C. Rules 3745-

81-11 and 3745-81-23 and a schedule pro-

vided by Ohio EPA.

5. The Defendants, Meadowlake Cor-

poration and Meadowlake Ltd, which include

entities or businesses carried on under the

names of Meadowlake Golf & Swim, Mead-

owlake Country Club and/or Rafters Bar and

Grille shall, within 120 days, properly aban-

don the presently constituted farmhouse well

and, in compliance with O.A.C. Rules 3745-

81-71 through 3745-81-75, connect with an

App. 39

approved water system: a) by repairing the

well and obtaining written approval for its

use from Ohio EPA, b) by abandoning the

well and obtaining an Ohio EPA approved

source of water for the public’s consumption,

c) by abandoning the well and hauling water

approved by Ohio EPA, in writing, onto the

premises, d) by abandoning the well and

connecting to an Ohio EPA approved water

system, or e) by installing an Ohio EPA ap-

proved surface water treatment system.

6. The Defendants, Meadowlake Cor-

poration and Meadowlake Ltd, which include

entities or businesses carried on under the

names of Meadowlake Golf & Swim, Mead-

owlake Country Club and/or Rafters Bar and

Grille shall, within 15 days, notify the public

in accordance with O.A.C. Rules 3745-81-21,

-23, -32 and -73, of the Defendants’ failures

to comply with the surface water treatment

rules to date;

7. The Defendants, Meadowlake Cor-

poration and Meadowlake Ltd., which in-

clude entities or businesses carried on under

the names of Meadowlake Golf & Swim,

Meadowlake Country Club and/or Rafters

Bar and Grille shall, within 120 days, attain

compliance with water well standards in ac-

cordance with R.C. § 6111.42 and O.A.C.

Chapter 3745-9;

8. The Defendants, Meadowlake Cor-

poration and Meadowlake Ltd., in view of

their longstanding and intentional violations

App. 40

of R.C. Chapter 6109, the rules adopted un-

der authority of R.C. 6109, and/or orders

issued by the Director of the Ohio Environ-

mental Protection Agency, are ordered to pay

a civil penalty of $300,000, for which amount

judgment is granted in favor of the Plaintiff,

State of Ohio, to be paid into the state treas-

ury to the credit of the drinking water pro-

tection fund created in R.C. §6109.30.

Meadowlake Corporation and Meadowlake

Ltd. shall be jointly and severally liable for

such civil penalty;

9. The court does not find that attorney

fees are available in this case in that pursu-

ant to the general “American rule,” the pre-

vailing party cannot recover attorney fees as

part of the cost of litigation in the absence of

statutory authorization. See Sorin v. Bd. of

Edn. (1976), 46 Ohio St.2d 177, 179. Had the

legislature intended to authorize such addi-

tional assessment or penalty against a party,

that authority would have been included in

R.C § 6109.33;

10. It is Ordered that all costs incurred

in this lawsuit shall be paid by the Defen-

dants, Meadowlake Corporation and Mead-

owlake Ltd., for which amount they are

jointly and severally liable.

ORDERED, ADJUDGED, AND DECREED.

/s/ Roger G. Lile

Roger G. Lile, Judge

App. 41

cc: Gregory J Poulos, Esq., Assistant Attorney General

Lizbeth Brown, Esq., Assistant Attorney General

Law Offices of Robert E. Soles, Jr., Co., LPA

Robert E. Soles, Jr., Esq.

Kara Dodson, Esq.

Faith R. Dylewski, Esq.

Kevin C. Cox, Esq.

App. 42

IN THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

STATE OF OHIO, ex rel. :

JIM PETRO, ATTORNEY :

GENERAL OF OHIO, “mone SA

PLAINTIFF, :

ia : JUDGMENT

: JUDGE LILE

MEADOWLAKE Mies

CORPORATION, et al, __ (Filed Aug. 1, 2006)

DEFENDANTS. _:

This action came before the court for considera-

tion of the Motion For Evidentiary Hearing filed on

behalf of the Defendants, Meadowlake Corporation

and Meadowlake Ltd.

Being advised in the premises, the motion and

briefs of counsel, the court does not find the Defen-

dants’ motion well taken and overrules the same. The

Defendants, having been advised of the consequences

of their failure to hire new counsel to appear at the

May 30, 2006 trial, delayed such hiring themselves.

The attorney, whom the Defendants state was un-

available to appear at the trial due to serious per-

sonal injuries, had never entered an appearance in

this matter and was never counsel of record in the

action. Prejudice to the Defendants, if any, was

caused by their own acts. The Defendants here, in

fact, are requesting a post-trial continuance of the

matter.

App. 43

The Court of Appeals for the Second Appellate

District in Woods v. Woods (March 9, 1994), Mont-

gomery App. No. 13487, unreported, stated:

Understandably, parties have no absolute

right to a continuance merely because of an

unexplained change of counsel immediately

preceding the time set for hearing of a cause.

And by the same token, the mere failure of a

party to employ counsel until just prior to

the date set for trial is not an adequate

ground for a continuance. Likewise, the dis-

charge or withdrawal of counsel is not alone

sufficient to support a motion for continu-

ance.

The trial in this lawsuit which was assigned for

trial in March 2006, was held on May 30, 2006.

Thereafter the case was taken under advisement and

final judgment in the matter is pending. For reasons

noted above, Defendants’ motion for a farther eviden-

tiary hearing is overruled.

ORDERED and DECREED.

/s/ Roger G. Lile

Judge Roger G. Lile

Assigned

cc: Robert E. Soles, Jr.

Gregory J. Poulos, Esq.

App. 44

IN THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

STATE OF OHIO, ex rel. )

JIM PETRO, ATTORNEY ) CASE NO.

GENERAL OF OHIO _) 2004 CV 01672

Plaintiff, ) JUDGE REINBOLD

v. MOTION FOR

) ARY (si

MEADOWLAKE ne)

CORPORATION, et al.) = “RING

) +a:

Defendant. ‘ (Filed Jul. 11, 2006)

Defendants, Meadowlake Corporation and Mead-

owlake Ltd. (hereinafter collectively referred to as

“Defendants” or “Meadowlake”) hereby respectfully

move this Court to grant an Order permitting Defen-

dants to present evidence prior to the required post

trial briefing in this matter. This Motion is not made

for purpose of delay but rather to permit Defendants

an opportunity to present evidence in this matter as

the same opportunity was not available at trial due to

circumstances beyond Defendant’s control.

As the Court is aware, on March 9, 2006, this

case was scheduled for trial to begin on May 30, 2006.

On that same date, Defendant’s counsel, Day Ketterer

Ltd. and Matthew Yackshaw filed a Motion for Leave

to Withdraw as Attorneys of Record for Defendants.

On March 14, 2006, in response to attorney Yack-

shaw’s Request to Withdraw, intervening Defendant,

Roy Barr filed a Motion to Stay Further Proceedings

il

App. 45

in order that Defendants could retain new counsel

and adequately prepare for trial. Plaintiff objected to

and moved to strike the pleading filed by Roy Barr as

improper on the grounds that a non-attorney cannot

represent corporate entities in Court.

On March 23, 2006, this Court ordered that the

case would indeed proceed to trial on May 30, 2006.

Defendants attempted to retain replacement counsel

during this time, meeting with over 10 different

attorneys, including Attorney Patrick DeBoer, Defen-

dant’s counsel for general corporate matters. See

Affidavit of Roy Barr at { 3, a true and accurate copy

of which is attached hereto as Exhibit A. Unfortu-

nately, a recent skiing accident had gravely injured

Attorney DeBoer, leaving him unable to represent

Defendants at the time of trial. (Barr Aff. 7 4.) Given

the short timeframe and the complex environmental

nature of the subject matter, Defendants were unable

to retain replacement counsel in time for the May 30,

2006 trial. As unrepresented corporate entities,

Defendants were unable to present evidence, cross

examine witnesses, preserve errors or otherwise

present or defend their position at trial, seriously

prejudicing their interests. It is for this reason,

Defendants, now having secured counsel, respectfully

request a hearing to present evidence in this matter.

App. 46

Respectfully Submitted,

LAW OFFICES OF ROBERT E.

SOLES, JR., CO., LPA

/s/ Faith R. Dylewski

Robert E. Soles, Jr. (#0046707)

Kevin C. Cox (#0074018)

Faith R. Dylewski (#0074985)

6531 Market Avenue, N, Suite 100

North Canton, OH 44721

Telephone: (330) 244-8000

Telefax: (330) 244-8002

E-mail: bsoles@soleslaw.com

Counsel for Defendants

CERTIFICATE OF SERVICE

A copy of the foregoing was mailed this _7th_ day of

July 2006, to:

Gregory Poulous

Nicole Candelora

Lizbeth M. Brown

Assistant Attorneys General

30 E. Broad Street, 25th Floor

Columbus, OH 43215

/s/ Faith R. Dylewski |

Counsel for Defendants

App. 47

EXHIBIT A

IN THE COURT OF COMMON PLEAS

STARK COUNTY, OHIO

STATE OF OHIO, exrel. )

JIM PETRO, ATTORNEY )

GENERAL OF OHIO ) CASE NO

Plaintiff, ) 2004 CV 01672

v. . JUDGE REINBOLD

MEADOWLAKE ) AFFIDAVIT

CORPORATION, et al. )

Defendant. )

STATE OF OHIO :

: SS:

COUNTY OF STARK

I, Roy Barr, who being first duly sworn, deposes

and state as follows:

1. At all relevant times I have been the Chief

Executive Officer of Meadowlake Corporation and

Meadowlake, Ltd., and I have personal knowledge of

the facts contained herein.

2. At the time that Attorney Yackshaw informed

Defendants that he would be withdrawing, I was un-

aware that Defendants could object to Mr. Yackshaw’s

withdraw [sic]. Additionally, I had concerns regarding

Mr. Yackshaw’s continued zealous representation of

Defendants as Mr. Yackshaw had previously refused

to do any further work on the matter.

App. 48

3. Based upon Mr. Yackshaw’s position, it was

my belief at the time that Defendants would be better

represented with different counsel. On behalf of

Defendants, I immediately began contacting potential

replacement counsel to represent Defendants in the

approaching trial. Among the attorneys contacted were

Patrick DeBoer, John Pierson, Larry Zink, Gerald

Baker, Stanley Rubin, Patrick Cusma, Victor Marsh,

Clay Keller, Daniel Warren, and Richard Sahli.

4. When I contacted Defendants’ corporate

attorney, Patrick DeBoer, I learned that he had

recently been involved in a very serious skiing acci-

dent. As a result, Attorney DeBoer was not well

enough to represent Defendants at the time of trial.

5. Until the Motion to Stay the Proceedings was

denied, I was not aware that Defendants as corporate

entities could not proceed at trial pro se if necessary.

Further Affiant sayeth naught.

/s/ Roy Barr

Roy Barr

Sworn to and subscribed in my presence this

6th_ day of July, 2006.

/s/ Faith R. Dylewski

Notary Public

App. 49

[SEAL] FAITH RENEE DYLEWSKI

Attorney at Law

Notary Public, State of Ohio

My Commission

Has No Expiration

Section 147.03 R.C.

App. 50

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ex rel. ) CASE NO. 08-0247

JIM PETRO, ATTORNEY )

: On Appeal from

GENERAL OF OHIO ) - ome —_

Plaintiff-Appellee, Court of Appeals

v. Fifth Appellate

MEADOWLAKE ) District

CORPORATION, et al. ) Court of Appeals

) Case No.

Defendants-Appellants. ) 2006 CA 00252

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANTS

(Filed Jan. 31, 2008)

Robert E. Soles, Jr. (#0046707)

Kevin C. Cox (#0074018)

Kara Dodson (#0075527)

Faith R. Dylewski (#0074985) — Counsel of Record

6545 Market Avenue, N

North Canton, OH 44721

Telephone: (330) 244-8000

Telefax: (330) 244-8002

E-mail: bsoles@soleslaw.com

COUNSEL FOR DEFENDANTS-APPELLANTS

Andrea M. Salimbene

Assistant Attorney General of Ohio

30 E. Broad Street, 25th Floor

Columbus, Ohio 43215

COUNSEL FOR PLAINTIFF-APPELLEE

App. 51

(i] TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A

CASE OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTAN-

TIAL CONSTITUTIONAL QUESTION ...................... 1

STATEMENT OF THE CASE AND FACTG................ 4

ARGUMENT IN SUPPORT OF PROPOSI-

Fe I cbiiinisiniataicniiniannneniescnteeiiaiimeniniamenenecese 8

Proposition of Law No. 1. Due process is

violated when a corporate defendant is de-

nied the opportunity to proffer evidence at

a hearing, after having been precluded

from participation at trial due to a lack of

I sieiteiatietimcierinanipiiitiiannctiansnnitdeiiiinbeimmesrerneceees 8

Proposition of Law No. 2. The award of

an immense civil penalty in favor of the

government without any consideration of

the defendant’s ability to pay has a suffi-

ciently penal effect in vi.iation of the

Eighth Amendment’s prohibition against

ili iiictnincinninreietsssascticddelinsdininineennseees 9

Proposition of Law No. 3. A court must

take into consideration the defendant’s

ability to pay a civil penalty when making

its penalty determination. ....................cceeceeeeeeeeee 10

NE diiitiisieicsonsceerconesencasneecenticinevenniinneesasonnentie 12

PT Ee OTE sntnectesoneserereenenssernsinnensvenenueieninns 13

App. 52

APPENDIX Appx. Page

Opinion of the Stark County Court of

Appeals (December 17, 2007).............cccssseeeesereeeees 1

Judgment Entry of the Stark County

Court of Appeals (December 17, 2007) ............... 21

[1] EXPLANATION OF WHY THIS CASE

IS A CASE OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL QUESTION

This case presents significant constitutional

questions of law which are of great interest to the

public. Meadowlake Corporation and Meadowlake

LLC (“Appellants” or “Meadowlake Defendants”) were

not afforded due process and have been severely

penalized in violation of the Excessive Fines Clause of

the Eighth Amendment. As in the case at hand,

violations of the Environmental Protection Agency’s

(EPA) regulations often can result in punitive sanc-

tions, akin to criminal sanctions. For this reason, it is

imperative that such defendants be afforded proce-

dural due process. This case is of great public or

general interest because the absolute right to proce-

dural due process in a quasi-criminal proceeding is

involved, and the denial/of due process in such cases

could result in governmental abuses of power.

Appellants in this matter were caught in an

untenable position when their previous counsel with-

drew before the trial; without counsel they could not

move to continue the trial, and without a continuance

App. 53

they could not participate at trial. It is crucial that

corporate entities be afforded the opportunity to

obtain new counsel when the corporation’s counsel

withdraws prior to trial because corporate entities

cannot proceed with the defense of a civil action

without representation by counsel, Gueli v. David L.

Carter Productions, Inc., (July 29, 1982), 10th Dist.

No. 82AP-249. The opportunity to meaningfully

participate at trial in a matter that involves substan-

tial governmentally imposed sanctions, is an elemen-

tal requirement of due process. The unsupported

denial of Appellants’ Motion for Evidentiary Hearing

was arbitrary, capricious and in violation of the

Appellants’ Due Process rights. By its cursory ruling

affirming the denial of Appellants’ request for an

evidentiary hearing, the court of appeals ratifies the

very governmental overreaching that can occur, and

in fact has occurred, in the absence of due process

protections.

[2] The court f appeals held that “it would be

patently unfair to allow Appellants to, in effect,

participate in the trial by submitting evidence after

the fact.” On the contrary, the patent unfairness arose

when Appellants were denied the opportunity to

present any defense. The denial of the Appellants’

Motion for Evidentiary Hearing foreclosed any oppor-

tunity to remedy the injustice that was caused by the

Appellants’ inability to participate in the trial.

This case also presents the Court with the oppor-

tunity to clarify and define the implications of the

Excessive Fines Clause of the Ninth Amendment of

App. 54

the Ohio Constitution and the Eighth Amendment of

the United States Constitution in cases in which the

State is awarded excessive civil penalties. This issue

is of great public or general interest due to the quasi-

criminal nature of such a severe sanction when

imposed by the government, and the fact that Ohio

district courts are in conflict on this issue. The Fifth

District Court of Appeals perfunctory dismissal of the

applicability of the Excessive Fines Clause to civil

actions is in conflict with the First District Court of

Appeals holding in Allen v. Niehaus, 1st Dist. Nos. C-

000213 & C-000235, 2001-Ohio-4021, in which that

court held that the Ohio legislature’s discretion to

punish is substantively limited by the Fourteenth

Amendment’s Due Process Clause, which makes the

Eighth Amendment’s prohibition against excessive

fines applicable to the states, and prohibits states

from imposing grossly excessive punishments on

tortfeasors. It is critical that this Court settle the

direct conflict between the district courts on this issue

which implicates fundamental rights.

Pursuant to the U.S. EPA’s Civil Penalty Policy,

the factors that are to be considered in assessing a

penalty in order to deter future violations include: (1)

the defendant’s good or bad faith; (2) the defendant’s

financial gain attributable to the violations; and (3)

the environmental harm resulting from the viola-

tions. Brown v. Howard (1981), 3 Ohio App.3d 189,

191, 3 O.B.R. [3] 216, 444 N.E.2d 469. The size of the

business is a factor that is also to be considered.

Brown v. Dayton Malleable Iron (1982), 1 Ohio St. 3d

App. 55

151; 1 O.B.R. 185, 438 N.E.2d 120. Additionally, the

defendant’s ability to pay is a “significant factor” that

is necessary to consider in making any penalty de-

termination. Id. The lower courts’ failure to even

consider any evidence with respect to the Appellants’

financial ability to pay, resulted in a grossly excessive

penalty in violation of the Excessive Fines Clause of

the U.S Constitution and the Ohio Constitution. The

court of appeals cursory dismissal of the applicability

of the Excessive Fines Clause in the ease at hand is

in direct conflict with other Ohio district courts and is

a matter of great general and public interest that

must be resolved.

In this case, there was no evidence presented

that Meadowlake Defendants gained financially, and

therefore this factor could not have been considered

by the trial court. Similarly, there was no evidence

presented regarding the Meadowlake Defendants’

revenue, therefore the court could not have taken this

“significant factor” into consideration. If the true

purpose of a civil penalty is deterrence and not pun-

ishment, it was reversible error for the court to refuse

to assess the appropriateness of the proposed penalty

in light of the Meadowlake Defendants’ financial

condition. The court of appeals condoned the trial

court’s extreme civil penalty award which merely

adopted the arbitrarily recommended penalty pro-

posed by the EPA without any consideration of the

size of the businesses affected. Clearly a penalty of

$300,000.00 assessed against a small seasonal busi-

ness of this nature goes beyond deterrence and will

App. 56

exact the most severe punishment — bankruptcy of

the businesses.

This Court must grant jurisdiction to hear this

case and review the erroneous decision of the court of

appeals in order to clarify the State’s position with

respect to the application of the Excessive Fines

Clause to the award of extreme civil penalties by the

State, and to prevent [4] selective or retaliatory

governmental sanctions from being imposed without

procedural due process protections.

STATEMENT OF THE CASE AND FACTS

This is not a case involving acts of pollution, but

rather this case revolves around records violations

and technical omissions stemming from Meadowlake

Defendants ongoing dispute with the EPA regarding

whether it is in fact a public water system subject to

regulation.

As background informa‘ on, Meadowlake Golf

and Swim Club is operated by Defendant, Meadow-

lake Ltd.; Defendant, Meadowlake Corporation, is the

holding company that owns the land on which the

Club and golf course are located. (Tr. p. 6). There are

two separate wells that service the property: a hard

water well used exclusively for irrigation of the golf

course, and a separate soft water well that services

the Club and the Barr family residence that is also

located on the property. (Tr. p.54; Plaintiff’s Trial

Exh. 43).

App. 57

In April 28, 1995, the Ohio EPA requested that

Defendant obtain a copy of the well log so that the

EPA had adequate background information on the

well. (Plaintiff’s Trial Exh. 60). Meadowlake Defen-

dants contacted ODNR requesting any available

information on their Well. (Plaintiff’s Trial Exh. 45).

Because no well log was required at the time the Well

was drilled, Appellants were told that an affidavit of

the well driller would suffice. However, before the

affidavit could be obtained, EPA arbitrarily reclassi-

fied the well as ground water under the influence of

surface water. Meadowlake Defendants subsequently

obtained and provided to the EPA an affidavit from

the well driller, who affirmed that the well was cased

to a depth of 180 feet. (Tr. pp. 293, 297).

Since the Ohio Environmental Protection Agency’s

(“EPA”) implementation of well classification require-

ments, the Well source classification had been

“Ground Water.” In August [5] 1999, the EPA arbi-

trarily changed the designation of the well to “Under

the Influence of Surface Water”. (Plaintiff’s Trial

Exh. 99). This change in designation was made

without any evidence of bacteria intrusion into the

well, and without any change in circumstances sur-

rounding the well. (Tr. p 272). It is from this re-

classification of the Well, which the violations in this

matter stem. Pursuant to the reclassification, the

EPA requires that Meadowlake Defendants conduct

four total coliform tests and one test for nitrates per

month. (Tr. pp. 59-61). Previously, Meadowlake had

App. 58

been conducting quarterly tests for total coliform and

annual tests for nitrates, with no failed tests.

The Club is a small facility that operates most

activities only seasonally. David Bowland of the EPA

testified that the Meadowlake Defendant’s are not a

classified public water system because they do not

serve enough people. (Tr. p. 37).

The State’s evidence was contradictory; however

Appellants were unable to illuminate this fact due to

the denial of the opportunity to present evidence and

cross examine witnesses at trial. During the trial, Mr.

Bowland testified that the well was below grade and

therefore potentially subject to flooding. (Tr. p. 66).

This testimony was contrary to Mr. Bowland’s conclu-

sions in the June 30, 1998 well survey that he con-

ducted, in which he concluded that the well cap,

drainage, and isolation of the well were all accept-

able, and further concluded that the casing height of

the Well terminated eight inches above grade. In

follow-up letter of July 9, 1998, the Ohio EPA con-

cluded that “ ... this well terminates sufficiently

above surrounding grade to reasonably preclude the

possibility of the well being flooded.” At that time the

EPA’s concern was that a second well was connected

to the water distribution system for use as emergency

backup. The EPA indicated that if the second well

was disconnected, and four calendar quarters of

coliform samples indicated that the water was total

coliform-negative, the well could be re-[6Jdesignated

as ground water. The emergency well had in fact been

disconnected in the 1970’s and the EPA was advised

App. 59

of such on numerous occasions. Despite acknowledg-

ing that the emergency backup well was discontin-

ued, and that the total conform tests continued to be

negative, the EPA nevertheless re-designated the well

classification. ;

In August 1999, the EPA informed Mr. Roy Barr

by designation letter that the Well was re-designated

as “ground water under the direct influence of surface

water.” (Plaintiff’s Trial Exh. 57.) After receipt of the

designation letter, Meadowlake Defendants took

reasonable steps toward obtaining city water from the

City of Canton. Ultimately, Meadowlake Defendants

were unsuccessful in procuring city water. Because

the Well had not been abandoned or updated, nor an

approved water filtration system constructed and

installed as of April 2001, Meadowlake Defendants

were considered to be in violation. In May 2002, the

Director of the EPA issued unilateral administrative

findings and orders finding that Roy Barr dba Mead-

owlake Golf & Swim, was in violation of Revised Code

Chapter 6109. (Tr. p. 288.) Mr. Roy Barr filed a Notice

of Appeal challenging the Director’s unilateral admin-

istrative findings and orders, commencing a case in

the Environmental Review Appeals Commission

(“ERAC”). On September 23, 2003, one week before

the appeal before ERAC was to begin, the Director

revoked his unilateral administrative findings and

orders. ERAC dismissed Mr. Barr’s pending appeal as

moot. The revocation of the Director’s findings and

orders and the subsequent dismissal of Mr. Barr’s

appeal as moot, led the Meadowlake Defendants to

App. 60

believe that their public water system designation,

and the resulting notices of violations, were retracted.

On May 19, 2004, the State of Ohio filed a civil

complaint, alleging that Meadowlake Defendants

owned and operated a public water system, and were

in violation for not having a license, failing to sample

the water, and for not posting notice. (Tr. p. 7). On

March 23, 2006, [7] the trial court granted Meadow-

lake Defendants’ attorney leave to withdraw from the

case, due to Meadowlake Defendants inability to

timely pay their legal fees. Meadowlake Defendants

were unsuccessful in retaining replacement counsel

prior to the trial.

The trial went forward on May 30, 2006, and

Meadowlake Defendants were unable to cross exam-

ine Plaintiff’s witnesses, offer, evidence, make objec-

tions or otherwise participate or defend themselves in

the proceedings. Subsequently, in late June 2006,

Meadowlake Defendants retained replacement coun-

sel. On July 11, 2006, Meadowlake Defendants, by

and through counsel, moved the trial court for an

evidentiary hearing in order to present evidence on

the record. Meadowlake Defendants Motion was

summarily denied on August 1, 2006. On August 4,

2006, the final judgment entry was entered, which

Meadowlake Defendants appealed to the Fifth Dis-

trict Court of Appeals.

App. 61

[8] ARGUMENT IN SUPPORT

F LAW

Proposition of Law No. 1

Due process is violated when a corpo-

rate defendant is denied the opportu-

nity to proffer evidence at a hearing,

after having been precluded from par-

ticipation at trial due to a lack of

counsel.

Due process requires that a party whose rights

are sought to be affected be afforded a full hearing

with the opportunity to introduce evidence on one’s

behalf and have judicial findings based upon it.

Jennings v. Mahoney (1971), 404 U.S. 25, 26, 92 S. Ct.

180,\30 L. Ed.2d 146; City of Maumee (January 16,

1987), 6th Dist. No. L-86-168. “The fundamental

requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful

manner.” Sutton v. Schregardus (1994), 94 Ohio

App.3d 213, 216, 640 N.E.2d 581. Due process implies

the right to contradict by proof every material fact

which hears on the question of the rights involved.

Jennings v. Mahoney. There is no hearing in the

constitutional sense where the party is not given a

meaningful opportunity to test, explain, or refute

evidence. Id. at 26, 92 S. Ct. 180, 30 L. Ed.2d 146,

Jenkins v. McKeithen, (1969), 395 U.S. 411, 428, 89

S. Ct. 1843; 23 L. Ed. 2d 404. The right to present

evidence is essential to a fair hearing required by the

Due Process Clause. Jenkins v. McKeithen, (1969),

395 U.S. 411, 429, 89 S. Ct. 1843; 23 L. Ed. 2d 404.

App. 62

The appellate court stated that “as an initial

matter, we note that appellants never filed a written

motion for continuance of the May 30, 2006 trial.”

The court could not have considered such a motion

even if the Appellants had so moved, because as

unrepresented corporate defendants, the trial court

could not have entertained the motion. Ohio Revised

Code Section 4705.01 prohibits anyone from practic-

ing law or commencing or defending an action in

which he or she is not a party concerned unless he or

she has been admitted to the bar by order of the

Supreme Court of Ohio. Furthermore, a corporation

cannot maintain litigation or appear in Court through

an officer of the corporation or an [9] appointed agent

who is not admitted to the practice of law. Union

Savings Assn. The Homeowners Aid (1970), 23 Ohio

St. 2d 60, 262, N.E. 2d 558, 52 Ohio Op. 2d 329,

syllabus of the Court.

Proposition of Law No. 2

The award of an immense civil penalty

in favor of the government without any

consideration of the defendant’s ability

to pay has a sufficiently penal effect

in violation of the Eighth Amendment’s

prohibition against excessive fines.

Large civil penalty awards purport to deter

wrongful acts by a defendant. Although civil penalty

statutes are not labeled as “crimina]” by the State,

when they in practical effect punish the defendant,

App. 63

they are sufficiently analogous to criminal punish-

ments to justify application of the Eighth Amend-

ment. See Cooper Indus. V. Leatherman Tool Group,

Inc. 532 U.S. 408, 432, 123 S.Ct 1513. In this case,

the appellate court particularly noted that the “pen-

alty must be large enough to hurt the offender.” This

statement contradicts this Courts’ holding in Brown

v. Dayton Malleable Iron, which stated that the

purpose of a civil penalty is deterrence, not punish-

ment. (1982), 1 Ohio St. 3d 151, 159; 1 O.B.R. 185,

438 N.E.2d 120. Clearly, if the penalty must hurt the

offender, then the civil penalty is in fact punishment.

Moreover, the very term “penalty” by its own defini-

tion means punishment. If a civil penalty has the

purpose of retribution and deterrence, these are the

very same purposes that underlie every criminal

sanction. As Justice Stevens stated “(t]he fact that

part of the award in this case is payable to the State

lends further support to my conclusion that it should

be treated as the functional equivalent of a criminal

sanction.” Philip Morris USA v. Williams (2007) 127

S.Ct 1057, 166 L.Ed.2d 940 (Stevens, J., dissenting)

The Ohio legislature’s discretion to punish is

substantively limited by the Fourteenth Amend-

ment’s Due Process Clause, which makes the Eighth

Amendment's prohibition against excessive fines

applicable to the states, and prohibits states from

imposing grossly excessive [10] punishments on tort-

feasors. Allen v. Niehaus, 1st Dist. Nos. C-000213 &

C-000235, 2001-Ohio-4021. Additionally, the Ninth

Amendment to Ohio’ Constitution contains the

App. 64

identical prohibition. The Eighth Amendment Exces-

sive Fines Clause, although previously held inappli-

cable in cases of punitive damages involving private

parties, is implicated in cases in which a monetary

award is paid directly to the State or a state agency.

Since the Brown v. Dayton Malleable Iron holding of

this Court, to which the Fifth District Court of Ap-

peals made reference, the U.S. Supreme Court has

revisited the issue of the applicability of the Eighth

Amendment Excessive Fines Clause to monetary

awards, in particular, awards payable to the State.

Notably, the U.S. Supreme Court in Browning-Ferris

Indus. of Vermont, Inc. v. Kelco Disposal, Inc. (1989),

492 U.S. 257, 265, 109 S.Ct 2909, examined the scope

and origins of the excessive fines clause, finding that

the excessive fines clause was intended to limit those

fines imposed by and payable to the government.

As previously noted, this court has stated that

the purpose of a civil penalty is deterrence, not pun-

ishment. Dayton Malleable Iron, 1 Ohio St.3d at 159,

1 O.B.R. 185, 438 N.E.2d 120. In order for this to hold

true, the defendant’s income and ability to pay must

be considered. Moreover, the defendant’s ability to

pay is a “significant factor” that is necessary to

consider in making any penalty determination. Id.

The failure of the court of appeals to require this

inquiry, and its perfunctory approval of the excessive

penalty award was arbitrary, capricious and not in

accordance with law.

App. 65

Pr ition w No. 3

A court must take into consideration

the defendant’s ability to pay a civil

penalty when making its penalty de-

termination.

The court of appeals relied exclusively on

U.S. v. Gulf Park Water Co., Inc. 14 F.Supp.2d 854

(S.D.Miss.,1998), a case involving violations of the

Clean Water Act, for the [11] proposition that the

burden to show mitigating evidence of the ruinous

effect of the sizable penalty lies with the defendants.

However, the court in that case actually engaged in

an analysis of the economic benefit gained by Gulf

Park Water Co.’s non-compliance and the defendant’s

financial condition. On the contrary, in the case at

hand, the trial court conducted no analysis of any

kind with respect to any economic benefit and heard

no evidence regarding the financial status of the

Appellants.

Notably, in U.S. v. Gulf Park Water Co., Inc., both

the government and the defendants introduced expert

testimony regarding the defendant's ability to pay.

Although the court held that the burden was on the

defendants to produce mitigating evidence, the initial

burden was on the State to produce evidence justify-

ing the initial penalty determination. Only when the

court has considered all of the required factors, which

include particuiarly the defendants ability to pay,

does the burden shift to the Defendants to affirma-

tively show mitigating factors. If the court has

made no meaningful consideration of the Defendant’s

App. 66

ability to pay, or in the case at hand has heard no

evidence at all on the matter, the determination of

the penalty has no justification. The court in Gulf

Park Water Co. went so far as to appoint a special

master to study the ability to pay issue in order to

shed further light on the financial evidence presented

at trial prior to rendering its decision. 14 F.Supp.2d

at 867. The facts of that case are far different than -

those present in this matter.

The assessment of a $300,000.00 civil penalty in

the absence of any evidence that the same was ap-

propriate in light of the Appellants’ ability to pay, was

arbitrary, capricious, and otherwise not in accordance

with law. The court of appeals reasoning improperly

shifted the burden to Appellants before the State had

presented any evidence as to required elements for

[12] which it bore the burden of proof.

CONCLUSION

The court of appeals decision affirming the trial

court’s award of civil penalties in the amount of

$300,000.00 is arbitrary and excessive and in viola-

tion of the Excessive Fines Clause in light of the

circumstances in this matter, and the recent recogni-

tion by justices of the United States Supreme Court

and Ohio’s First District Court of Appeals. The court

of appeals did not utilize any consideration of Appel-

lants’ size and financial status which are critical

factors in such a determination. The trial court’s

App. 67

denial of Appellants Motion for an evidentiary hear-

ing was arbitrary and unreasonable in light of the

compelling due process concerns.

For the reasons stated above, this case involves

matters of public and great general interest and a

substantial constitutional question. The Appellants

respectfully request that this Court accept jurisdic-

tion in this case so that the important issues pre-

sented here will be reviewed on the merits.

Respectfully Submitted,

LAW OFFICES OF

ROBERT E. SOLES, JR., CO., LPA

/s/ Faith R. Dylewski ia

Robert E. Soles, Jr. (#0046707)

Kevin C. Cox (#0074018)

Kara Dodson (#0075527)

Faith R. Dylewski (#0074985)

6545 Market Ave N

North Canton, OH 44721

Telephone: (330) 244-8000

Telefax: (330) 244-8002

E-mail: bsoles@soleslaw.com

Counsel for Appellants

App. 68

[13] CERTIFICATE OF SERVICE

I certify that a copy of this Memorandum in

Support of Jurisdiction was sent by ordinary U.S.

mail to counsel for appellees, Marc Dann, Attorney

General of Ohio, this 30th day of January, 2008 at the

following address:

Andrea M. Salimbene

Assistant Attorneys General

30 E. Broad Street, 25th Floor

Columbus, OH 43215

/s/ Faith R. Dylewski

Faith R. Dylewski

COUNSEL FOR APPELLANTS

App. 69

IN THE COURT OF APPEALS

FIFTH APPELLATE JUDICIAL DISTRICT

STARK COUNTY, OHIO

STATE OF OHIO, exrel. ) CASE NO.

JIM PETRO, ATTORNEY ) 2006 CA 00252

GENERAL OF OHIO On Appeal from

)

Plaintiff-Appellee, ) the Stark County

-. Court of Common

Pleas, Case No.

MEADOWLAKE ) 2004CV01672

CORPORATION, et al. ana

)

Defendants-Appellants. )

BRIEF FOR DEFENDANTS-APPELLANTS,

MEADOWLAKE CORPORATION AND

MEADOWLAKE LIMITED, LLC

(Filed Dec. 5, 2006)

Robert E. Soles, Jr. Gregory Poulos

(#0046707) Assistant Attorney

Kevin C. Cox (#0074018) General of Ohio

Kara Dodson (#0075527) 30 E. Broad Street,

Faith R. Dylewski 25th Floor

(#0074985) Columbus, Ohio 43215

6531 Market Avenue, N, Counsel for

Suite 100 Plaintiff-Appellee

North Canton, OH 44721

Telephone: (330) 244-8000

Telefax: (330) 244-8002

E-mail:

bsoles@soleslaw.com

Counsel! for

Defendant-Appellants

App. 70

li] TABLE OF CONTENTS

ASSIGNMENT OF ERROR NUMBER ONE .......

THE TRIAL COURT ERRED BY PROCEED-

ING TO TRIAL ON MAY 30, 2006, WITH THE

KNOWLEDGE THAT MEADOWLAKE DE-

FENDANTS WERE UNREPRESENTED BY

COUNSEL FOR REASONS BEYOND THEIR

CONTROL.

ASSIGNMENT OF ERROR NUMBER TWO .......

THE TRIAL COURT ERRED BY DENYING

APPELLANTS’ MOTION FOR EVIDENTIARY

HEARING THEREBY DENYING APPEL-

LANTS THE OPPORTUNITY TO PROFFER

EVIDENCE, CROSS EXAMINE WITNESSES,

PRESERVE ERRORS, OR OTHERWISE DE-

FEND THEIR POSITION.

ASSIGNMENT OF ERROR NUMBER THREE...

THE TRIAL COURT ERRED BY DENYING

APPELLANT’S DEMAND FOR JURY TRIAL.

App. 71

ASSIGNMENT OF ERROR NUMBER FOUR..... 13

THE PENALTIES THAT THE TRIAL COURT

AWARDED TO THE OHIO EPA ARE EXCES-

SIVE, ARBITRARY, INAPPROPRIATE, AND

IN VIOLATION OF APPELLANTS’ DUE

PROCESS RIGHTS.

ihtiicninenteisoccsusicsonsuoniodeteanassinensia 18

SIRT GIES ceceeverscopeascrseonssresencnsouneeeurson 19

TL Mireiniitindiieibandienierannedsncanapeinacniatinnienieiendninns 20

fii] TABLE OF AUTHORITIES

Cases

BMW of N. Am. v. Gore (1996), 517 U.S. 559,

116 S. Ct. 1589, 134 '‘L.Ed.2d. 809 .....................0000 17

Brown v. Dayton Malleable Iron (1982), 1 Ohio

St. 3d 151; 1 O.B.R. 185, 438 N.E.2d 120 ........15, 16

Brown v. Howard (1981), 3 Ohio App.3d 189, 3

Ss et GN RAID TRIN ceicciescbicnnen sontimtindwedinanienes 16

City of Maumee (January 16, 1987), 6th Dist.

i eT icici wis siecineitsciirntielenicibiaslaecanialiphaiaaienticnwial 8

City of Mentor v. Nozitk (September 23, 1994),

es eR SPE cccincenrstnsccncvessasibasivinicvinncuse 10

Dalton v. The Cleveland Elec. Illuminating Co..

Cs Seer RI, TI ic csinninenensianeednatinbtanutopeetenintes 9

Drake v. East Cleveland (1920), 101 Ohio St.

ic ee I eeiciniatiteienilashectcieepsidaiiainssineiaiiinninbaiitncniindininn 10

Gueli v. David L. Carter Productions, Inc.,

(July 29, 1982), 10th Dist. No. 82AF-249................. 6

—-

“aa

App. 72

Jenkins v. McKeithen, Governor of Louisiana,

et al. (1969), 395 U.S. 411, 89 S. Ct. 1843; 23

I i ls casipmasictiinecsoned 8

Jennings v. Mahoney (1971), 404 U.S. 25, 92

ee MIE Tie EID IID as ceccnscccnnvecscsecevrsscooessevess 8

MacKenzie v. Stuber (1929), 119 Ohio St. 588, 7

ee, ee , . cscesseneccenscorese )

Metaxas v. General Motors Corp. (March 25,

SS, SE Is BI TEED vc cncovcnscniesdcddvecasvecssevecscocces 6

Prairie Twp. Bd. of Trustees vs. Stickles (Feb-

ruary 3, 1994), Franklin App. No. 93 Ap-824......... 10

Raskow v. Fortner (April 15, 1998), 9th Dist.

i ihdieinbictitiedinbsisbbabaindinbontescpiaienincenaiees 10, 11

Statutes

sais a aatnadininieniadouseniinigdai 11

EERE TET AE REIS SRD EE TNT 11

i ci iia dicitln talc dadiibiianininde 10, 11

ii] STATEMENT OF THE ISSUES

ASSIGNMENT OF ERROR NUMBER ONE

1. Whether Meadowlake Defendants as corpo-

rate entities were entitled to a continuance

of the trial in order to procure replacement

counsel.

2. Whether Meadowlake Defendants were un-

fairly prejudiced by the trial court’s action in

proceeding with the May 30, 2006 trial.

App. 73

ASSIGNMENT OF ERROR NUMBER TWO

1.

Whether the Meadowlake Defendants were

denied due process by the trial courts denial

of Defendants’ Motion for Evidentiary Hear-

ing.

ASSIGNMENT OF ERROR NUMBER THREE

1.

Whether the civil penalties awarded to

Plaintiff pursuant to R.C. 6109.33, could

have been awarded independently of the in-

junctive relief granted pursuant to 6109.32.

Whether the trial court made any independ-

ent factual determination regarding whether

the Meadowlake Defendants each own or op-

erate a public water system, outside of

adopting the EPA’s determination.

ASSIGNMENT OF ERROR NUMBER FOUR

1.

Whether the trial court took into considera-

tion the size and financial status of Meadow-

lake Defendants in determining the civil

penalty award.

Whether the trial court took into considera-

tion the harm, or lack thereof, caused by

Meadowlake Defendants when assessing

civil penalties.

[1] STATEMENT OF THE CASE AND FACTS

What is now the Meadowlake Golf and Swim

Club (“the Club”) started as a nine hole golf course in

App. 74

the spring of 1963. (Plaintiff’s Trial Ex. 2). Prior to

the construction of the golf course, the Barr family

operated a dairy farm on the property. (Plaintiffs

Trial Ex. 2). The existing dairy barn was converted

into the clubhouse that is still used today, (Plaintiff’s

Trial Ex. 2). Currently, Meadowlake Golf and Swim

Club is operated by Defendant, Meadowlake Ltd.;

Defendant, Meadowlake Corporation, is the holding

company that owns the land on which the Club and

golf course are located. (hereinafter collectively

referred to as “Meadowlake Defendants” or “Appel-

lants”) (Testimony of Philip Barr, p. 6). There are two

separate wells that service the property: a hard water

well used exclusively for irrigation of the golf course,

and a separate soft water well that services the Club

and the Barr family residence that is also located on

the property. (Trial Trans. p.54; Plaintiff’s Trial Exh.

43). The soft water well at issue in this matter (the

“Well”), was drilled prior to the time that the Ohio

Department of Natural Resources (“ODNR”) main-

tained well drilling logs.

In April 28, 1995, the Ohio EPA requested that

Defencant obtain a copy of the well log so that the

EPA had adequate background information on the

well. (Plaintiff’s Trial Exh. 60). The letter went on to

state that if the well log could not be located, the well

driller should be instructed to contact the EPA,

(Plaintiff’s Trial Exh. 60) Meadowlake Defendants

contacted ODNR requesting any available informa-

tion on their Well. (Plaintiff’s Trial Exh. 45). Because

no well log was required at the time the Well was

App. 75

drilled, Defendants were told that an affidavit of the

well driller would suffice. However, before the affida-

vit could be obtained, EPA reclassified the v ll as

ground water under the influence of surface water.

Meadowlake Defendants subsequently obtained and

provided to the EPA an affidavit from the well driller,

Mr. George Martin, who affirmed that the well was

cased to a depth of 180 feet. (Testimony of David

Bowland pp. 293, 297).

[2] Since the Ohio Environmental Protection

Agency’s (“EPA”) implementation of well classification

requirements, the Well source classification had been

“Ground Water.” In August 1999, the EPA arbitrarily

changed the designation of the well to “Under the

Influence of Surface Water.” (See letter of August 11,

1999, Plaintiff’s Trial Exh. 99). This change in desig-

nation was made without any evidence of bacteria

intrusion into the well, and without any change in

circumstances surrounding the well. (Testimony of

David Bowland, p 272). It is from this re-classification

of the Well, that many of the underlying violations of

this current litigation stem. The EPA contends that

each day Appellants continue to operate without a

reclassification of the water well to ground water they

are in violation, unless the Club obtains water from a

new source, or installs a water treatment plant. The

water treatment required would be, in the words of

EPA representative David Bowland, “a far more

sophisticated system” analogous to the water treat-

ment facilities in the City of Alliance. (Trial Trans.

p. 62). Additionally, pursuant to the reclassification,

App. 76

the EPA requires that Meadowlake Defendants

conduct four total coliform tests and one test for

nitrates per month. (Trial Trans. pp. 59-61). Previ-

ously, Meadowlake had been conducting quarterly

tests for total coliform and annual tests for nitrates,

with no failed tests. In the time since the well was

classified as under the influence of surface water,

Meadowlake Defendants have taken numerous steps

toward reclassifying the well, or obtaining water from

alternative sources, unfortunately to no avail. Fur-

thermore, Appellants dispute that the Club falls

within the definition of a public water system, the

key issue in this case.

The Club is a small facility that operates most

activities only seasonally. David Bowland of the EPA

testified that the Meadowlake Defendant’s are not a

classified public water system because they do not

serve enough people. (Trial Trans. P. 37). The small-

est classification is a Class A, which is for systems

which serve at least 250 people per day. (Trial Trans.

P. 37). The [3] City of Allance, by comparison services

approximately 25,000 people. (Trial Trans. p. 40).

David Bowland testified that the well was below

grade and therefore potentially subject to flooding.

(Trial Trans. p. 66). This testimony is contrary to Mr.

Bowland’s conclusions in the June 30, 1998 well

survey that he conducted with Edward Conlin. (See

Well Survey of 6-30-98, attached hereto as Exhibit

A.) In that survey, Mr. Bowland and Mr. Conlin

concluded that the well cap, drainage, and isolation of

the well were all acceptable, and further concluded

App. 77

that the casing height of the Well terminated eight

inches above grade. In a follow-up letter of July 9,

1998, Mr. Conlin further stated, “Excluding the

elevation of the knoll, Mr. Bowland and I estimate

that this well terminates sufficiently above surround-

ing grade to reasonably preclude the possibility of the

well being flooded.” (See July 9, 1998 letter attached

hereto as Exhibit B.) At that time the EPA’s concern

was that a second well was connected to the water

distribution system for use as emergency backup. The

EPA indicated that if the second well was discon-

nected, and four calendar quarters of coliform sam-

ples indicated that the water was total coliform-

negative, the well could be designated as ground

water. The emergency well had in fact been discon-

nected in the 1970’s and the EPA was advised of such

on numerous occasions. (See Plaintiff’s Trial Exh. 44,

noting that the emergency hard water well was

disconnected from the system.) Despite acknowledg-

ing that the emergency backup well was discontin-

ued, and that the total coliform tests continued to be

negative, the EPA nevertheless re-designated the well

classification.

In August 1999, the EPA informed Mr. Roy Barr

by designation letter that the Well was re-designated

as “ground water under the direct influence of surface

water,” (Plaintiff’s Trial Exh. 57.) After receipt of the

designation letter, Meadowlake Defendants took

reasonable steps toward obtaining city water from the

City of Canton. (See Mr. Roy Barr letters of Septem-

ber 26, {4] 2001 and April] 12, 2002, attached hereto

App. 78

as Exhibit C). Ultimately, Meadowlake Defendants

were unsuccessful in procuring city water. Because

the Well had not been abandoned and a water treat-

ment plant had not been constructed and installed as

of April 2001, Meadowlake Defendants were consid-

ered to be in violation. In May 2002, the Director of

the EPA issued unilateral administrative findings

and orders finding that Roy Barr dba Meadowlake

Golf & Swim was in violation of Revised Code Chap-

ter 6109. (Testimony of David Bowland at p. 288.) Mr.

Roy Barr filed a Notice of Appeal challenging the

Director’s unilateral administrative findings and

orders, commencing a case in the Environmental

Review Appeals Commission (“ERAC”). On Septem-

ber 23, 2003, one week before the appeal before

ERAC was to begin, the Director revoked his unilat-

eral administrative findings and orders. Plaintiff

moved to dismiss Mr. Barr’s pending appeal as moot,

which Motion was granted on October 22, 2003. The

revocation of the Director’s findings and orders and

the subsequent dismissal of Mr. Barr’s appeal as

moot, lead the Meadowlake Defendants to believe

that their public water system designation, and the

resulting notices of violations, were retracted.

On May 19, 2004, the State of Ohio filed the

underlying complaint in this matter, alleging that

Meadowlake Defendants owned and operated a public

water system, and were in violation for not having a

license, failing to sample the water, and for not post-

ing notice. (Trial Trans. p. 7; See also Complaint).

Originally the matter was set for jury trial, but after

App. 79

the trial court declared a mistrial in the first trial in

January 2006, the Court reconsidered and granted

Plaintiff’s previously filed motion to proceed in the

absence of a jury. (See Order of May 19, 2006, at-

tached hereto as Exhibit D.) The second trial was

scheduled to begin May 30, 2006. On March 23, 2006,

the Court granted attorney Matthew Yackshaw,

counsel for Meadowlake Defendants at the time,

leave to withdraw from the case, due to Appellants

having been behind in [5] their payment of legal fees.

After Mr. Yackshaw’s withdraw [sic], Meadowlake

Defendants contacted Attorney Patrick DeBoer

regarding potential representation. (See Affidavit of

D. Patrick DeBoer attached hereto as Exhibit E.) On

or about April 18, 2006, Attorney DeBoer received

grave injuries as a result of a serious skiing accident,

and was physically unable to represent Meadowlake

Defendants at the May 30, 2006 trial. (DeBoer Aff. at

{ 3.) Attorney DeBoer called the court to inquire as to

the possibility of obtaining a continuance of the trial

date. (DeBoer Aff. at 7 3; Transcript of proceedings at

p. 11.) When told that a grant of such a motion was

doubtful, and knowing that he was physically unable

to proceed with the trial as scheduled, Attorney

DeBoer declined to file a Notice of Appearance, in

order to avoid potentially being held in contempt.

(DeBoer Aff. at { 4.)

The trial went forward on May 30, 2006, and

Meadowlake Defendants were unable to cross exam-

ine Plaintiff’s witnesses, offer evidence, make objec-

tions or otherwise participate or defend themselves in

App. 80

the proceedings. Subsequently, in late June 2006,

Meadowlake Defendants retained replacement coun-

sel. On July 11, 2006, Meadowlake Defendants, by

and through counsel, moved the trial court for an

evidentiary hearing in order to present evidence on

the record. (See Defendant’s Motion for Evidentiary

Hearing.) Meadowlake Defendants Motion was de-

nied on August 1, 2006. Shortly thereafter, the final

judgment entry was issued by the Court on August 4,

2006, which Meadowlake Defendants now appeal.

(See Judgment Entry attached hereto as Exhibit F.)

[6] ARGUMENT

ASSIGNMENT OF ERROR NUMBER ONE

THE TRIAL COURT ERRED BY PROCEED-

ING TO TRIAL ON MAY 30, 2006, WITH THE

KNOWLEDGE THAT MEADOWLAKE DE-

FENDANTS WERE UNREPRESENTED BY

COUNSEL FOR REASONS BEYOND THEIR

CONTROL.

It is crucial that corporate entities to be afforded

the opportunity to obtain new counsel when the

corporation’s counsel withdraws prior to trial because

corporate entities cannot proceed with the defense of

a civil action without representation by counsel. Gueli

v. David L. Carter Productions, Inc., (July 29, 1982),

10th Dist. No. 82AP-249, attached hereto as Exhibit

G. Further, the Ninth District has held that it was

error for the trial] court to enter judgment against an

individual who failed to obtain counsel after having

App. 81

been granted thirty days leave to secure substitute

counsel. Metaxas v. General Motors Corp. (March 25,

1988), llth Dist. No. 3912, attached hereto as Ex-

hibit H. In that case, the trial court had entered

judgment against Metaxas who was unrepresented at

trial, holding that she failed to prosecute her action

and present any evidence on her own behalf. Id.

Because Metaxas had difficulty speaking or under-

standing English, she had a difficult time finding

replacement counsel who spoke and understood

Greek within the thirty day limit, and therefore she

was entitled to provide facts to the court. Id.

Similarly, in this matter, Appellants were unable

to retain substitute counsel in the time allotted after

withdraw [sic] of their former counsel, due to extenu-

ating circumstances beyond their control. Like the

appellee in Metaxas who had a difficult time finding

replacement counsel who spoke and understood

Greek, Meadowlake had a difficult time finding and

retaining replacement counsel who understood the

complexities of this environmental matter. (See

Affidavit of Roy Barr attached to Motion for Eviden-

tiary Hearing, attached hereto as Exhibit I.) Envi-

ronmental [7] law constitutes a relatively narrow

focus of practice and involves complex matters. Very

few local attorneys practice in this area, and there-

fore the pool of available attorneys from which Mead-

owlake Defendants had to choose was already greatly

diminished. Additionally, there was a relatively

short time period for replacement counsel to prepare

and review the voluminous amount of material and

App. 82

research gathered over the previous two years during

which this matter had been pending.

In spite of all of the difficulties, and after meet-

ing with over a dozen attorneys, Meadowlake Defen-

dants found potential replacement counsel in

attorney D. Patrick DeBoer, Esq., with whom they

had a previous legal relationship. (Barr Aff., Exhibit

I). Mr. Barr had contacted Attorney DeBoer in early

spring 2006 regarding potential representation of

Meadowlake Defendants in the pending matter. (See

DeBoer Aff. at 2.) As environmental matters were not

Attorney DeBoer’s area of expertise, he informed Mr.

Barr that he would try to find another attorney to

represent Meadowlake Defendants. (DeBoer Aff. at

2.) Despite the efforts of both Mr. Barr and Attorney

DeBoer replacement counsel was not found.

On or about April 18, 2006, Attorney DeBoer

received serious injuries as a result of a skiing acci-

dent, and was physically unable to represent Mead-

owlake Defendants at the May 30, 2006 trial. (DeBoer

Aff. at 3.) Attorney DeBoer called the court to inquire

as to the possibility of obtaining a continuance of the

trial date. (DeBoer Aff. at 4 3; Transcript of proceed-

ings at p. 11.) When told that a grant of such a motion

was doubtful, and knowing that he was physically

unable to proceed with the trial as scheduled, Attor-

ney DeBoer declined to file a Notice of Appearance, in

order to avoid potentially being held in contempt.

(DeBoer Aff. at ¥ 4.)

App. 83

Meadowlake Defendants inability to find re-

placement counsel prior to trial was due to circum-

stances outside of their control, despite diligent

efforts to obtain representation. As [8] unrepresented

corporate entities, Meadowlake Defendants were

unable to present any defense, and were at a great

disadvantage with much at stake. The trial court’s

failure to continue the matter to provide Meadowlake

Defendants with an opportunity to obtain counsel and

present a defense was prejudicial error.

ASSIGNMENT OF ERROR NUMBER TWO

THE TRIAL COURT ERRED BY DENYING

APPELLANTS’ MOTION FOR EVIDENTIARY

HEARING THEREBY DENYING APPEL-

LANTS THE OPPORTUNITY TO PROFFER

EVIDENCE, CROSS EXAMINE WITNESSES,

PRESERVE ERRORS, OR OTHERWISE DE-

FEND THEIR POSITION.

Due process requires that a party whose rights

are sought to be affected be afforded a full hearing

with the opportunity to introduce evidence on one’s

behalf and have judicial findings based upon it.

Jennings v. Mahoney (1971), 404 U.S. 25, 26, 92 S. Ct.

180, 30 L. Ed.2d 146; City of Maumee (January 16,

1987), 6th Dist. No. L-86-168, attached hereto as

Exhibit J. Due process implies the right to contra-

dict by proof every material fact which bears on the

question of the rights involved. See Jennings v.

Mahoney, 404 U.S. 25. There is no hearing in the

constitutional sense where the party is not given a

App. 84

meaningful opportunity to test, explain, or refute

evidence. 404 U.S. at 26, 92 S. Ct. 180, 30 L. Ed.2d

146.

The right to confront and cross-examine wit-

nesses is a fundamental aspect of procedural due

process. Jenkins v. McKeithen, (1969), 395 U.S. 411,

428, 89 S. Ct. 1843; 23 L. Ed. zd 404. The right to

present evidence is essential to a fair hearing re-

quired by the Due Process Clause. Id. at 429.

Meadowlake Defendants were ultimately denied

their due process rights to introduce evidence and to

confront and cross-examine witnesses. Counter to the

allegation by the State of Ohio, Meadowlake Defen-

dants immediately began to seek substitute counsel

in order to [9] participate in trial. (Barr Aff. Exhibit

H). When Attorney DeBoer was ultimately physically

unable to represent Meadowlake, and was informed

that the trial court was not inclined to grant a motion

to continue the trial, Meadowlake Defendants were

left to silently sit through the May 30, 2006 trial. The

Meadowlake Defendants, and their corporate officers

were unable to present evidence, cross-examine

witnesses, preserve errors or otherwise present or

defend their position at trial. This seriously preju-

diced Appellants’ interests and violated their proce-

dural due process rights. After retaining replacement

counsel, Meadowlake Defendants moved the Court for

an evidentiary hearing in order to at least present

evidence on the record, prior to the submission of a

post trial brief. The trial court denied Defendants’

Motion, again denying Meadowlake Defendants any

App. 85

opportunity for a meaningful defense and violating

their due process rights. (See August 1, 2006, Judg-

ment attached hereto as Exhibit K). Accordingly, the

trial court’s final judgment entry should be vacated

and the cause remanded for a new trial.

ASSIGNMENT OF ERROR NUMBER THREE

THE TRIAL COURT ERRED BY DENYING

APPELLANT’S DEMAND FOR JURY TRIAL.

It is prejudicial error for a trial court to refuse

the demand of a party for a trial by jury in a civil

action coming within the statutory description of

those which are required to be tried by jury.

MacKenzie v. Stuber (1929), 119 Ohio St. 588, 7 Ohio

L. Avs. 109, 165 N.E. 296. Whether there has been a

violation of an ordinance or statute is a question

which is normally left to the province of a jury unless

the statute at issue imposes an absolute duty and

there is no question regarding the underlying factual

circumstances. Dalton v. The Cleveland Elec. Illumi-

nating Co.. (1919), 30 Ohio C.A. 24. It is not for the

court to substitute its process of [10] reasoning,

however, apparently sound, for that of the jury, in a

field which belongs peculiarly to the latter.” Drake v.

East Cleveland (1920), 101 Ohio St. 111, 120, 127

N.E. 469.

“In cases involving both legal and equitable

claims, the trial court must determine the dominating

object of the litigation in evaluating the merits of the

jury demand.” Prairie Twp. Bd. of Trustees vs. Stickles

App. 86

(February 3, 1994), Franklin App. No. 93 Ap-824,

attached hereto as Exhibit L.) In the case City of

Mentor v. Nozik (September 23, 1994), 11th Dist. No.

93-L-130, upon which Plaintiff relied in its pleadings

is factually distinct from this matter. (See City of

Mentor v. Nozik attached hereto as Exhibit M). In

Noztk, the Complaint only requested injunctive relief,

and therefore it was founded in equity alone, and no

right to a jury trial existed.

In this case, however, the Complaint filed by the

Attorney General’s Office on behalf of the Environ-

mental Protection Agency, specifically asked for civil

penalties in an amount exceeding $63 million dollars,

pursuant to R.C. Section 6109.33. Mentor v. Nozik can

be further distinguished because in that case the

action originally arose as a declaratory judgment

action regarding the validity and interpretation of the

statutes at issue, brought by the party alleged to have

violated the statute. In this case, however the pri-

mary focus of the EPA’s Complaint has been to pursue

civil penalties against Defendants, which in fact were

awarded by the trial court in an astonishing record

breaking amount of $300,000.00.

The standard for determining if a party is enti-

tled to a jury trial in a mixed, legal and equitable

action, such as exists here, is: “When a case presents

both a legal and equitable claim for relief, and the

money demand is ‘incidental and ancillary’ to the

equitable claim and can be awarded only if the equi-

table relief is granted first, then the case is predomi-

nantly an equitable action for which no jury trial is

App. 87

required.” Raskow v. Fortner (April 15, 1998), 9th

Dist. No. 18399, attached hereto as Exhibit N. In

other words, in order for a court to deny a party’s

right [11] to a jury trial, the court must first deter-

mine that the money demand is “incidental and

ancillary” to the equitable relief and the court must

conclude that the civil penalty can be awarded only if

the equitable relief is granted first. The statutory

scheme set forth in Chapter 6109 clearly recognizes

that injunctive relief and civil penalties are distinct

and separate remedies. Revised Code 6109.32 ad-

dresses injunctive relief whereas R.C. 6109.33 ad-

dresses civil penalties. Were these remedies one and

the same, they would surely have been codified in one

code section.

A review of the separate statutes governing

injunctive relief and civil penalties pursuant to

Chapter 6109 of the Ohio Revised Code clearly illus-

trates that the remedies are mutually exclusive.

Revised Code 6109.32 empowers the Attorney Gen-

eral to bring an action for injunction against any

person violating or threatening to violate R.C.

6109.31, the prohibition section of that chapter. The

following section, R.C. 6109.33, provides a separate

and distinct remedy, which can be pursued irrespec-

tive of any equitable remedy. Specifically, R.C.

6109.33 authorizes the State to pursue civil penalties

up to $25,000 for each violation of R.C. 6109.31. The

State can choose to pursue civil penalties pursuant to

R.C. 6109.33 independently of the injunctive rem-

edy contained in R.C. 6109.32. The civil penalty

App. 88

remedy is available independent from the injunction.

Therefore, the granting of an injunction is not

necessary for the award of a monetary penalty.

Because the monetary penalty can be awarded inde-

pendently, whether or not equitable relief is granted

first, the test contained in Raskow v. Fortner is not

satisfied and therefore Meadowlake Defendants are

and were entitled to a jury trial.

Plaintiff successfully argued that the demand for

civil penalties is incidental to the equitable relief

requested. Webster’s Dictionary defines incidental as

“minor or casual or subordinate in significance.”

Certainly a $63 million dollar demand and a

$300,000.00 actual penalty assessed against a small

business cannot be considered incidental under any

[12] interpretation of that word.

Further, there are significant questions regard-

ing the underlying factual circumstances of this

matter. The Meadowlake Defendants were entitled to

have the following factual issues determined in a jury

trial:

1. Whether the farmhouse well casing termi-

nates at least eight inches above the finished

grade, which the Court answered in the

negative. (See Finding of Fact 20).

2. Whether Defendants serve water for human

consumption to at least 25 people on a daily

basis for at least 60 days out of the year,

which the trial court never addressed, but

deferred to the determination of the EPA;

and most importantly.

App. 89

3. What if any civil penalties should be imposed

against Defendants? which the court an-

swered affirmatively and by Judgment Entry

imposed civil penalties of $300,000.00.

As Meadowlake Defendants correctly noted in

their December 30, 2005 Supplemental Memoran-

dum, these are factua

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