# Petition for Writ of Certiorari — Meadowlake Corp. v. Ohio (No. 08-221) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0191%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text \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 ili 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. ¢ 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. ¢ 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 constitut [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0191%3A1. Public record. Not legal advice.