Opposition Brief — Meadowlake Corp. v. Ohio (No. 08-221)

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VY e DEC 5 - 2003

| No. 08-221 © OFFICE OF THE CLERK

Jun the Supreme Court of the Gnited States |

MEADOWLAKE CORPORATION, et al.,

Petitioners,

Vv.

STATE OF OHIO, ex rel. NANCY ROGERS,

ATTORNEY GENERAL OF OHIO,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF OHIO,

FIFTH APPELLATE DISTRICT

BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

NANCY H. ROGERS

Attorney General of Ohio

BENJAMIN C. MIZER*

Solhcitor General

*Counsel of Record

ELISABETH A. LONG

Deputy Solicitor

ANDREA M. SALIMBENE

Assistant Attorney General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980; 614-466-5087 fax

Counsel for Respondent

State of Ohio, ex rel. Nancy

Rogers, Attorney General of

Ohio

QUESTIONS PRESENTED

1. Whether, unlike civil forfeitures that are

historically regarded as punishment and tied to the

commission of a crime, a civil penalty assessed for

violations of Ohio’s Safe Drinking Water Act is

outside the purview of the Eighth Amendment

Excessive Fines Clause.

2. Assuming the Eighth Amendment Excessive

Fines Clause applies to some civil penalties, whether

a civil penalty that is clearly proportional to the

offense in question and amounts to only 1.2 percent

of the maximum penalty authorized by law is

consistent with the Excessive Fines Clause.

3. Whether, consistent with the Fourteenth

Amendment Due Process Clause, a trial court can

limit a corporate defendant’s ability to participate in

court proceedings where the defendant, by its own

inaction and without justification, fails to secure

counsel before a trial scheduled months in advance.

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION

COUNTERSTATEMENT

REASONS FOR DENYING THE WRIT

TABLE OF CONTENTS

Ohio EPA reclassified Meadowlake’s

public water system, thereby requiring

Meadowlake to comply with heightened

monitoring and treatment requirements.......

An Ohio court found that Meadowlake

committed more than 1000 violations of

Ohio’s Safe Drinking Water Act, awarded

Ohio injunctive relief, and imposed a

SI GAVE III asc cncccsscenscccenccccecasecsseeess

An Ohio appeals court affirmed the trial

court’s judgment, and the Ohio Supreme

nn e cudasedasabansud

The Exghth Amendment Excessive Fines

Clause does not apply to the civil penalty

imposed for Meadowlake’s violations of

Ohio’s Safe Drinking Water Act....................

1. This Court has never applied the

Excessive Fines Clause to a _ civil

TE CRS OR RI OS RSS PPAR O SIRE REFS

ill

2. This Court’s reasons for applying the

Excessive Fines Clause to civil

forfeitures in Austin and Bajakajian

do not apply to this civil penalty. ...........

3. Meadowlake’s civil penalty is not

sufficiently punitive to transform it

into a criminal penalty.......................0e008

Even if the Court were to apply the

Excessive Fines Clause, the civil penalty

was not excessive by any definition. .............

1. The civil penalty was not grossly

disproportional to the gravity of

Meadowlake’s violations. ...................0..6

2. The lower courts’ reliance on different

factors to evaluate excessiveness does

not indicate confusion about the

standard for evaluating whether a fine

is unconstitutionally excessive. ..............

Meadowlake had a full and fair

opportunity to exercise its due process

rights where it had ample notice of the

trial date and, without justifiable excuse,

failed to secure timely representation. .........

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TABLE OF AUTHORITIES

Cases Page(s)

Armstrong v. Manzo,

I ccapiaueenamaseiade 29

Austin v. United States,

509 U.S. G02, GOS (1993).....................000 passim

Boddie v. Connecticut,

is ouiieinenueeuiaen 30

Carlson v. Landon,

TRAE OTL MAC P AE Tae 10

Columbia Gas Transmission Corp. v. Levin,

882 N.E.2d 400 (Ohio 2008) ....................0..000 14

Cox for U.S. Senate Comm. v. FEC,

No. 03 C 3715, 2004 U.S. Dist. Lexis 6939

scald cine retiialhsbtesevedndebepinnie 27

Hudson v. United States,

Be Gee PIED ec cccnccccccescoscceceee 17, 18, 20, 21

Ingraham v. Wright,

as deteianarpaiiiasnovaonainial 10

Jenkins v. McKeithen,

aidan eaaieiiia 32

Jones v. Flowers,

i ceeunigianbael 29

Kelly v. U.S. EPA,

203 F.3d 519 (7th Cir. 2000) .................... 27, 28

Kennedy v. Mendoza- Martinez,

ee ee is ss ccvccwcsdecesonantebe 18

Metro. Sec. Co. v. Warren State Bank,

PR eG 6 ys ee 16

Morgan v. United States,

FERRITE PRP ea mea nEeE Tae 30

Mullane v. Cent. Hanover Bank & Trust Co.,

a i ac aiscn idiacnataia 29

Newell Recycling Co., Inc. v. U.S. EPA,

231 F. 3d 204 (5th Cir. 2000) ................... 27, 28

Ohio ex rel. Brown v. Dayton Malleable,

438 N.E.2d 120 (Ohio 1982)............... 15, 20, 25

Ohio ex rel. Brown v. Howard,

444 N.E.2d 469 (Ohio Ct. App. 1981)....... 15, 21

Ohio ex rel. Celebrezze v. Thermal-Tron, Inc.,

592 N.E.2d 912 (Ohio Ct. App. 1992)............. 15

Ohio ex rel. Dann v. Meadowlake Corp..,

886 N.E.2d 872 (Ohio 2008) .........00.... eee 9

Ohio ex rel. Dann v. Meadowlake Corp.,

No. 2006 CA 00252, 2007 Ohio App. Lexis

5949 (Ohio Ct. App. Dec. 17, 2007)........ passim

Ohio ex rel. Montgomery v. Maginn,

770 N.E.2d 1099 (Ohio Ct. App. 2002)..... 15, 20

Ohio v. Tri-State Group, Inc.,

No. 03 BE 61, 2004 Ohio App. Lexis 4036

(Ohio Ct. App. Aug. 20, 2004) .................. 20, 25

State v. Cheraso,

540 N.E.2d 326 (Ohio Ct. App. 1988)............. 19

Towers v. City of Chicago,

173 F.3d 619 (7th Cir. 1999) ............00..004. 26, 27

Tyson v. Amerigroup Illinois, Inc.,

488 F. Supp. 2d 719 (N.D. Ill. 2007) .............. 26

United States v. Bajakajian,

524 U.S. 321 (1998)................csececss-s000-. passim

United States v. Lippert,

148 F.3d 974 (8th Cir. 1998) .................... 12, 13

United States v. Liviola,

605 F. Supp. 96 (N.D. Ohio 1985) .................. 19

United States v. Nevada Power Co.,

No. CV-S-87-861-RDF, 1990 U.S. Dist.

Lexis 18998 (D. Nev. June 1, 1990) ............... 28

United States v. Production Plated Plastics,

Nos. 93-2055, 93-2618, 1995 U.S. App.

Lexis 20539 (6th Cir. July 19, 1995).............. 28

United States v. Ward,

I I . .. curcusnessecnovcccesonscevouscess 20

Constitutions, Statutes, and Rules

U.S. Const.:

ESSERE ESL EF Cece OE NEEN eT passim

Ie esnhemhnnieie einen 1

vil

REE IIS PE Seale pe reaper 23

SATE RSET aSS EIT OO ICE 27

EEE nie ee CORE RIT NOR 12

Liss schsnclspirecinddceaniesiiphisiamioinsnlininibassiamaais 15

dis aieatstcasinaib ccednnabamiivadadeic 16

IR a EAR NE nO 16

Ohio Admin. Code § 3745-81-73 .0..........ccccceceeeseeeeseeees 4

Ohio Rev. Code Chapter 3704..............................0008. 16

Ohio Rev. Code Chapter 3751 .........ccccccccccsssssceseeeeeeee 16

Ohio Rev. Code Chapter 6109...........0.00..0cccecee eee 8, 19

Soy BOO, CUE REDD on ccccccccecccccscscccesceccescesens 15

Ohio Rev. Code § 6109.03...................ccccseceseceeseee 15, 21

Ohio Rev. Code § 6109.31.................0..ccceeeeee 14, 19, 23

Ohio Rev. Code § 6109.33...............00.00008 14, 19, 23, 24

Ohio Rev. Code Chapter 6111....................cccccceee 5, 16

Other Authorities

I as iinesnniscirsdcegsibilondeendsisnmanoneetsaiiitid 12

EES SRC ena tne REN ev 19, 28

Ohio’s Safe Drinking Water Acct ....................... passim

Resource Conservation and Recovery Act..........19, 28

INTRODUCTION

Petitioners Meadowlake Corporation § and

Meadowlake Limited, LLC (collectively

“Meadowlake”) ask this Court to review an Ohio

court of appeals decision upholding the imposition of

a $300,000 civil penalty for violations of Ohio safe

drinking water laws and regulations. Specifically,

Meadowlake contends that the civil penalty violates

the Excessive Fines Clause of the Eighth

Amendment to the United States Constitution and

that the case presents an opportunity for this Court

to clarify its excessive fines jurisprudence.

Meadowlake also asserts a Fourteenth Amendment

due process claim, alleging that it was

unconstitutionally denied the opportunity to present

a defense and to participate in an evidentiary

hearing.

In spite of Meadowlake’s best efforts to portray

the questions presented as novel issues that would

allow this Court to clarify an area of constitutional

law, the petition fails to articulate any legal issue

meriting this Court’s attention.

Meadowlake’s excessive fines argument fails for

two main reasons. First, this Court has never held

that civil penalties imposed for violations of civil law

implicate the Eighth Amendment Excessive Fines

Clause. Contrary to Meadowlake’s assertions, lower

courts are not divided on this issue. Second, even if

this Court were to conclude that the Excessive Fines

Clause applies to certain civil penalties, such a

determination would not change the outcome of this

case because this penalty was not excessive. The

civil penalty imposed is well within the range of civil

penalties authorized by the Ohio General Assembly

for violations of Ohio's safe drinking water laws.

Moreover, the trial court exercised its informed

discretion in deciding to impose a civil penalty that

amounted to a mere 1.2 percent of the maximum

penalty authorized by Ohio law.

Meadowlake’s due process claims do not merit

this Court’s attention because they dispute the

appellate court’s proper application of long-

established and clear principles of constitutional law.

Meadowlake does not even allege any unresolved due

process issue or point to any confusion among lower

courts with respect to these claims; it simply

disagrees with the lower court’s holding. But the

appellate court’s decision was correct: The trial court

did not violate Meadowlake’s due process rights

either by refusing to allow Meadowlake additional

time to secure counsel—because Meadowlake’s lack

of counsel was not due to extenuating circumstances

beyond its control—or by denying Meadowlake’s

request for a post-trial evidentiary hearing that

would have essentially “continued” the trial. In fact,

Meadowlake simply chose to proceed without counsel

at trial and thereby failed to take advantage of the

meaningful opportunities the trial court offered for

Meadowlake to exercise its due process rights.

For these reasons, Meadowlake does not present

any questions meriting this Court’s review.

COUNTERSTATEMENT

A. Ohio EPA reclassified | Meadowlake’s

public water system, thereby requiring

Meadowlake to comply with heightened

monitoring and treatment requirements.

Meadowlake Golf & Swim Club (the “Club”)

consists of a golf course, swimming pool, pro shop,

restaurant, snack shop, and banquet facility. Ohio

ex rel. Dann v. Meadowlake Corp., No. 2006 CA

00252, 2007 Ohio App. Lexis 5949, at *1 (Ohio Ct.

App. Dec. 17, 2007). Meadowlake Limited, a

corporation established in 2001, operates the Club,

and Meadowlake Corporation owns the property

where the Club is located. Jd. Roy Barr is the Chief

Executive Officer (“CEO”) of Meadowlake Limited

and Meadowlake Corporation. Id. at *2.

A well located in a farmhouse basement on

Meadowlake Corporation’s property supplies water

to the farmhouse, pool, and club house. Jd. In 1995,

the Ohio Environmental Protection Agency (“Ohio

EPA”) determined that this water supply constituted

a public water system (“PWS”), meaning that

Meadowlake had to obtain an operational license

from Ohio EPA. Id. Meadowlake obtained the

required PWS licenses from 1996 to 1998, but did not

apply for or receive a license after 1998. Jd.

In August 1999, the Director of Ohio EPA

(“Director”) issued a _ proposed action changing

Meadowlake’s PWS designation from “Ground

Water” to a water source “under the influence of

surface water.” Jd. The proposed change in

classification would mean that, instead of providing

one bacteria sample per quarter and one nitrate

sample per year, Meadowlake would have to provide

four bacteria samples and one nitrate sample each

month. /d. at *3.

Later that month, Ohio EPA issued a final

designation of the water source as under the

influence of surface water, effective September 27,

1999. Id. at *2-3. Ohio EPA advised Meadowlake

that it had eighteen months to bring the PWS into

comphance in one of the following five ways: (1)

installing approved filtration treatment and

disinfection in compliance with Ohio Administrative

Code § 3745-81-73; (2) eliminating the _ well’s

construction and isolation defects so that the well

can be re-evaluated and redesignated as ground

water; (3) abandoning wells designated as surface

water and installing adequate approved ground-

water sources; (4) abandoning surface-water sources

and installing an approved hauled-water system; or

(5) abandoning’ surface-water sources and

purchasing water from an approved PWS. Id. at *3-

Beginning in November 1999, Ohio EPA sent

Barr numerous letters informing him that

Meadowlake’s PWS violated the Ohio Administrative

Code. Id. at *4. In February 2001, Ohio EPA sent

the Club a warning letter advising it to either

“receive a ground water designation for [its] sources

or install surface water treatment” by March 27,

2001. Id.

In May 2002, the Director issued Unilateral

Administrative Findings and Orders to Barr, as the

Club’s owner, stating in relevant part:

I am writing with regard to the violations

of Ohio’s safe drinking water rules at the

Meadowlake Golf & Swim’s public water

system. Specifically, you have failed te

comply with source water designation

requirements, failed to install filtration

treatment, 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.

Id. at *4-5. Barr appealed the Findings and Orders,

but the appeal was dismissed after the Director

revoked the Findings and Orders. Id. at *5.

B. An Ohio court found that Meadowlake

committed more than 1000 violations of

Ohio’s Safe Drinking Water Act, awarded

Ohio injunctive relief, and imposed a

$300,000 civil penalty.

The State of Ohio filed a_ thirteen-count

complaint against Meadowlake in the court of

common pleas, alleging that, as the owner and

operator of a PWS, it was in violation of Ohio

Revised Code, Chapters 6019 and 6111, and the

related rules. The complaint alleged’ that

Meadowlake had failed to: (1) maintain a_ public

water license; (2) maintain a written sample siting

plan; (3) adequately sample the water for nitrates

and bacteria; (4) notify the public of their violations;

and (5) comply with water-well standards. Id. at *5.

Ohio sought injunctive relief and a $25,000 civil

penalty for each day of Meadowlake’s violation. Id.

at *5-6.

The trial court allowed Barr to intervene as a

defendant because he individually owns 100 percent

of Meadowlake Corporation and 99 percent of

Meadowlake Limited. Jd. at *6. The trial court also

bifurcated the case, over the State’s objection.

A jury trial began in January 2006 on the sole

issue of whether Meadowlake owned and/or operated

a PWS. Id. The trial court declared a mistrial,

however, because 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.” Jd.

The trial court set a new trial date of May 30,

2006, giving the parties approximately eighty days’

advance notice. Jd. at *6, *13. That same day,

Meadowlake’s counsel sought leave to withdraw

because Meadowlake had failed to make any

payments on its account since mid-January or “to

make any satisfactory provisions for payment of [its]

substantial account balance.” Jd. at *7 (internal

quotation omitted). Meadowlake did not object to its

counsel's withdrawal. In fact, Barr announced that

counsel was terminated as of the date of counsel’s

motion. Jd. Meadowlake informed the trial court

that Barr would be out of state during the winter for

health reasons, but it would retain new counsel once

Barr returned to Ohio in April 2006. Jd.

The trial court granted Meadowlake’s counsel

leave to withdraw on March 23, 2006, specifically

noting that Meadowlake, as a corporate entity, would

not be able to proceed without representation. Jd. at

*7-8. The trial court’s order stated:

Therefore, the Defendants are ordered to

immediately secure the representation of

other counsel 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 issue before the court, or

otherwise represent the interests of the

corporate defendants.

Id. at *8.

On the _ State’s motion, the trial court

reconsidered its decision to allow a jury trial. On

May 19, 2006, the trial court ordered a bench trial

and again confirmed the May 30, 2006, trial date.

Id.

No counsel entered an appearance. on

Meadowlake’s behalf or requested a stay before the

trial date. Jd. at *13. Meadowlake was not

represented by counsel at trial. Jd. at *8. However,

Meadowlake did secure counsel after the trial

concluded. Id. at *9.

After the trial’s conclusion, but before the trial

court entered judgment, Meadowlake’s new counsel

filed a July 2006 motion for an evidentiary hearing

to give Meadowlake an opportunity to present post-

trial evidence. Jd. The trial court overruled the

motion, stating:

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.

Id. at *9-10.

The trial court entered judgment, finding that

Meadowlake owned and/or operated a PWS, had

violated Ohio law, and had committed more than

1000 violations of Ohio’s Safe Drinking Water Act

(“Act”), codified at Ohio Revised Code, Chapter 6109.

Id. at *10. The court granted Ohio injunctive relief

and imposed a $300,000 civil penalty. Id.

C. An. Ohio appeals court affirmed the trial

court’s judgment, and the Ohio Supreme

Court denied review.

Meadowlake appealed the trial court’s

judgment, raising four assignments of error: (1) the

trial court should not have proceeded to trial

knowing that Meadowlake was not represented by

counsel for reasons beyond its control; (2) the trial

court improperly denied Meadowlake’s post-trial

motion for an evidentiary hearing; (3) the trial court

improperly denied Meadowlake’s request for a jury

trial; and (4) the $300,000 civil penalty was

excessive, arbitrary, and inappropriate, and also

violated Meadowlake’s due process rights. Jd. at *11.

The court of appeals overruled each assignment of

error, affirming the trial court’s judgment. Id. at

"aT.

The Ohio Supreme Court denied discretionary

review of Meadowlake’s appeal from the

intermediate appellate court’s judgment, Ohio ex rel.

Dann v. Meadowlake Corp., 886 N.E.2d 872 (Ohio

2008), and Meadowlake filed a petition for certiorari

with this Court.

REASONS FOR DENYING THE WRIT

Meadowlake asks this Court to grant certiorari

in order to determine whether the Excessive Fines

Clause applies to the civil penalty imposed in this

case. Meadowlake’s excessive fines argument fails

for two reasons. First, this Court has never held that

civil penalties implicate the Excessive Fines Clause,

and no confusion exists among the lower courts on

this issue. Second, even if the Court were interested

in clarifying the applicability of the Excessive Fines

Clause to civil penalties, these are not facts upon

which the Court should reconsider its excessive fines

jurisprudence: Even if this Court were to conclude

that the Excessive Fines Clause applies to some civil

penalties, such a determination would not change

the outcome of this case because the penalty at issue

was not excessive by any definition.

Moreover, Meadowlake’s due process claims do

not merit this Court’s attention, because the

appellate court properly applied long-established and

clear principles of constitutional law in holding that

the trial court did not deny Meadowlake its due

process rights.

A. The Eighth Amendment Excessive Fines

Clause does not apply to the civil penalty

imposed for Meadowlake’s violations of

Ohio’s Safe Drinking Water Act.

The Eighth Amendment to the USS.

Constitution states: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. amend.

VIII. Although this Court has applied the Excessive

Fines Clause when reviewing the constitutionality of

certain civil forfeitures of property, this Court has

never held that the Excessive Fines Clause applies to

a civil penalty. Moreover, this case provides no

reason for the Court to consider expanding the scope

of the Excessive Fines Clause.

1. This Court has never applied the

Excessive Fines Clause to a civil

penalty.

This Court generally applies the Eighth

Amendment in the context of criminal proceedings.

The Eighth Amendment’s text, however, is not

explicitly confined to criminal prosecutions. See

Austin v. United States, 509 U.S. 602, 608 (1993).

Accordingly, this Court has recognized the Eighth

Amendment's applicability in hmited civil contexts.

In Carlson v. Landon, 342 U.S. 524 (1952), for

example, the Court applied the Excessive Bail

Clause to a civil proceeding involving an alien’s

detention pending a determination of deportability.

Id. at 544-46. In Ingraham v. Wright, 430 U.S. 651

(1977), the Court recognized that although the Cruel

and Unusual Punishments Clause’s original design

was “to limit criminal punishments,” id. at 668,

“[s]jome punishments, though not labeled ‘criminal’

by the State, may be sufficiently analogous to

criminal punishments in the circumstances in which

they are administered to justify application of the

Eighth Amendment,” id. at 669 n.37. Similarly, the

Court has applied the Excessive Fines Clause in

limited civil contexts.

Although Meadowlake correctly identifies two

cases where this Court has found that the Excessive

Fines Clause limits the government’s ability to

collect cash as a form of civil punishment, see United

States v. Bajakajian, 524 U.S. 321 (1998); Austin,

509 U.S. 602, neither case holds that the Excessive

Fines Clause applies to civil penalties like the one at

issue here. Austin and Bajakajian instead stand for

the narrow proposition that the Excessive Fines

Clause applies in the limited context of civil

forfeitures awarded under statutes authorizing the

administrative seizure of property related to the

commission of a crime.

In Austin, the Court found that a civil forfeiture

statute can trigger the Excessive Fines Clause, even

if the forfeiture is not entirely motivated by punitive

objectives. 509 U.S. at 610-611. In deciding whether

to apply the Excessive Fines Clause, the Court asked

not whether the forfeitures were criminal or civil, but

whether they constituted punishment. /d. at 610. If

a forfeiture “can only be explained as serving in part

to punish,” and not as wholly remedial, the Excessive

Fines Clause applies. Jd. Examining the specific

statute in question, the Court “[found] nothing in

these provisions or their legislative history to

contradict the historical understanding of forfeiture

as punishment.” Id. at 619. To the contrary, the

statute’s “innocent owner” defense to forfeiture

“focus[ed] the provisions on the culpability of the

owner in a way that makes them look more lke

punishment, not less.” Jd. (innocent-owner defense

indicates “congressional intent to punish only those.

involved in drug trafficking”). The Court noted that

“Congress [chose] to tie forfeiture directly to the

commission of drug offenses” and then concluded

that the provision’s legislative history confirmed its

punitive nature. Jd. at 620.

Five years later, the Court for the first and only

time struck a civil forfeiture statute for violating the

Excessive Fines Clause. Bajakajian, 524 U.S. 321.

The Bajakajian Court had “little trouble concluding

that the forfeiture of currency ordered by [the

statute] constitutes punishment” because the statute

directs courts to impose a forfeiture “at the

culmination of a criminal proceeding and requires

conviction of an underlying felony.” Id. at 328

(noting that the statute would not allow courts to

impose a forfeiture on an innocent party).

Meadowlake cites a single Eighth Circuit

opinion as evidence of confusion among lower courts

about the Excessive Fines Clause’s applicability to

civil penalties. Pet. at 11; see United States v.

Lippert, 148 F.3d 974 (8th Cir. 1998). The Eighth

Circuit in Lippert voiced uncertainty about whether

the Excessive Fines Clause applies to civil penalties

in the Anti-Kickback Act, codified at 41 U.S.C. § 54.

Id. at 978. According to Lippert, Austin’s “expansive

test” brings within the Excessive Fines Clause’s

purview any civil penalty that “is intended to serve

in part as punishment,” id. at 977, while Bajakajian

suggests that penalties “serviing] the remedial

purpose of reimbursing the Government for losses,”

id. at 978 (internal quotation omitted), “may not be

subject to the Excessive Fines Clause at all,” id. at

978.

The Eighth Circuit in Lippert misread Austin

and Bajakajian in two ways. First, it assumed that

the Court’s analysis in Austin and Bajakajian

applies to all civil penalties, whereas the holdings

are actually limited to civil forfeitures. Second,

Bajakajian’s' suggestion that civil forfeitures

remedying a governmental loss are not subject to the

Excessive Fines Clause is true only if those

forfeitures are not considered punishment. In any

event, neither Austin nor Bajakajian suggested that

a civil penalty, even one with purely punitive

purposes, is subject to the Excessive Fines Clause.

The Court has not analyzed whether any other

civil forfeitures constitute excessive fines since

Bajakajian, and it has never indicated that the

Excessive Fines Clause applies to civil penalties

other than civil forfeitures imposed under the

circumstances described above.

2. This Court’s reasons for applying the

Excessive Fines Clause to _ civil

forfeitures in Austin and Bajakajian

do not apply to this civil penalty.

Even if this Court were interested in expanding

the Excessive Fines Clause’s civil applicability, none

of the considerations that motivated the Court to

apply the Excessive Fines Clause to civil forfeitures

in Austin and Bajakajian are present in this case.

The Court’s holding in Austin turned on the punitive

character of in personam forfeitures at the time of

the Eighth Amendment’s enactment. Against the

backdrop of this “historical understanding of

forfeiture as punishment,” the Court looked for any

contrary evidence of legislative intent to author a

purely remedial statute. Austin, 509 U.S. at 619.

Unable to find evidence of such intent, the Court

concluded that the statutory forfeitures in Austin,

and later the forfeitures in Bajakajian, were clearly

punitive because they were directly tied to the

commission of a criminal offense. Jd. at 620

(forfeiture was linked closely to _ culpability);

Bajakajian, 524 U.S. at 328 (statute does not

authorize imposition of forfeiture on _ innocent

parties). By contrast, in this case, the Act’s language

and legislative history clearly reflect the Ohio

General Assembly’s intent to impose a civil penalty

and do not in any way tie the fine to the commission

of a criminal offense.

The trial court ordered Meadowlake to pay a

civil penalty pursuant to Ohio’s Safe Drinking Water

Act. When statutory language “conveys a clear,

unequivocal, and definite meaning, . . . the statute

must be applied according to its terms.” Columbus

Gas Transmission Corp. v. Levin, 882 N.E.2d 400,

406 (Ohio 2008). This civil statute authorizes courts

to impose civil penalties for violations. Ohio Revised

Code § 6109.33 clearly states that “[a]ny person who

violates section 6109.31 of the Revised Code shall

pay a civil penalty” and that “[s]uch an action is a

civil action, governed by the Rules of Civil Procedure

and other rules of practice and procedure applicable

to civil actions.” ld. (emphasis added). This

language reflects the Ohio General Assembly’s intent

to authorize only. the imposition of civil penalties in

civil actions for violations of Ohio’s safe drinking

water laws.

The <Act’s purpose further supports. the

conclusion that it authorizes only civil penalties.

The Act strives “to protect the public health and

welfare and to enable the state to assume and retain

primary enforcement responsibility under the

[federal] Safe Drinking Water Act,” codified at 42

U.S.C. § 300(M. Ohio Rev. Code § 6109.03; see id.

§ 6109.01(D). It authorizes the imposition of civil

penalties as a tool to implement this regulatory

scheme. See Ohio ex rel. Brown v. Howard, 444

N.E.2d 469, 471 (Ohio Ct. App. 1981) (noting in the

context of Ohio’s water pollution control laws that

“{cjivil penalties can be used as a tool to implement a

regulatory program”). These civil penalties are

meant to deter conduct contrary to that scheme and,

to be effective, “should be large enough to hurt the

offender.” Id.; see also Ohio ex rel. Celebrezze v.

Thermal-Tron, Inc., 592 N.E.2d 912, 917 (Ohio Ct.

App. 1992). As Ohio courts have noted, “civil

penalties, imposed for violations of environmental

regulations, are not penal but primarily deterrent in

nature.” Ohio ex rel. Montgomery v. Maginn, 770

N.E.2d 1099, 1104 (Ohio Ct. App. 2002) (citing Ohio

ex rel. Brown v. Dayton Malleable, 438 N.E.2d 120,

125 (Ohio 1982)).

A comparison of the Act to other environmental

laws also demonstrates the Ohio General Assembly’s

intent to authorize only civil penalties for safe

drinking water violations. When the General

Assembly has “used certain language in . . . one

instance and wholly different language in [another],

it will . . . be presumed that different results were

intended.” Metro. Sec. Co. v. Warren State Bank, 158

N.E. 81, 83 (Ohio 1927). The Ohio General Assembly

regularly distinguishes between civil and criminal

penalties when enacting environment laws. See

Ohio Rev. Code Chapter 3704 (delineating separate

criminal and civil penalties for air pollution control

violations); Ohio Rev. Code Chapter 3751

(delineating separate criminal and civil penalties for

hazardous substances violations); Ohio Rev. Code

Chapter 6111 (delineating separate criminal and

civil penalties for water pollution control violations).

Similarly, the federal Safe Drinking Water Act—the

very basis for Ohio’s Safe Drinking Water Act—

provides for enforcement primarily by administrative

order or civil action, but expressly authorizes

criminal sanctions in two instances. 42 U.S.C.

§ 300h-2 (willfully violating underground injection

control program laws); 42 U.S.C. § 3001-1 (tampering

with a PWS with intent to harm persons). These

criminal penalties authorized by other

environmental laws stand in stark contrast to the

Act’s description of civil penalties. The Ohio General

Assembly understood the _ difference between

authorizing civil and criminal penalties for

environmental violations and decided to authorize

only civil penalties under the Act, making no

mention of criminal penalties.

Moreover, none of the Court’s other reasons for

analyzing civil forfeitures under the Excessive Fines

Clause are present here. Unlike the civil forfeitures

at issue in Austin and Bajakajian, there is no

evidence that civil penalties like those authorized

under the Act were historically considered punitive.

In fact, money penalties have not “historically been

viewed as punishment.” Hudson v. United States,

522 U.S. 93, 104 (1997). As the statutory language,

the character of the overall regulatory scheme, and

the legislative intent demonstrate, the Act’s

penalties are intended to be civil and are not tied to

the commission of a criminal offense. In light of

these distinctions between the civil penalties here

and the civil forfeitures in Austin and Bajakajian, it

is clear that these penalties are not within the

Excessive Fines Clause’s purview.

3. Meadowlake’s civil penalty is not

sufficiently punitive to transform it

into a criminal penalty.

Although the Act’s penalty provisions are

clearly intended to be civil, are not of a type

historically regarded as punitive, and are not tied to

the commission of a crime, this Court nevertheless

could decide to evaluate whether the $300,000 civil

penalty is so severe as to amount to a criminal

penalty. Even if the Court were to engage in such an

analysis, however, the civil penalty imposed on

Meadowlake is not even arguably severe enough to

transform it into a criminal penalty. This further

counsels against granting Meadowlake’s petition.

This Court has set forth a clear test, in the

context of Fifth Amendment jurisprudence, for

determining whether a statutory scheme is so

punitive in purpose or effect that it transforms what

was clearly intended as a civil remedy into a criminal

penalty. The Court considers seven factors,

evaluating each in relation to a statute’s face:

(1) whether the sanction involves an

affirmative disability or restraint;

(2)whether it has _ historically been

regarded as a punishment; (3) whether it

comes into play only on a finding of

scienter; (4) whether its operation will

promote the _ traditional aims of

punishment—retribution and deterrence;

(5) whether the behavior to which it

applies is already a crime; (6) whether an

alternative purpose to which it may

rationally be connected is assignable for it;

and (7) whether it appears excessive in

relation to the alternative purpose

assigned.

Hudson, 522 U.S. at 99-100 (internal quotations

omitted) (citing Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168-69 (1963)). However, “only the clearest

proof will suffice to override legislative intent and

transform what has been denominated a civil remedy

into a criminal penalty.” Jd. at 100 (internal

quotation omitted) (no double jeopardy violation

where liability and civil penalty were imposed after

conviction and criminal penalty, even though both

penalties pertained to the same _ lending

transactions).

Application of the Hudson test to Ohio’s Safe

Drinking Water Act reveals that, consistent with the

statutory scheme, the trial court imposed a civil

penalty that is not even arguably punitive enough to

amount to a criminal penalty.

First, although the trial court in this case

enjoined Meadowlake to comply with QOhio’s Safe

Drinking Water Act, the underlying action involves

no affirmative disability or restraint. In fact,

Congress’ decision to give the U.S. Environmental

Protection Agency, an administrative agency,

authority under the federal Safe Drinking Water Act

to initiate actions involving similar penalties is

prima facie evidence that Congress intended to

provide for a civil sanction. Jd. at 103. Similarly, the

Ohio General Assembly clearly intended the Act's

penalties to be civil, for the reasons described above.

See Ohio Rev. Code § 6109.33.

Second, monetary penalties historically have

not been considered punishment and have been

enforceable through civil proceedings for centuries.

Id. at 104.

Third, Ohio Revised Code Chapter 6109 does

not include a scienter requirement; it is a strict

liability statute. The Act’s plain language states that

“[njo person shall violate this chapter, any rule

adopted under it, or any order or term or condition of

a license . . . under it.” Ohio Rev. Code § 6109.31; see

Meadowlake Corp., 2007 Ohio App. Lexis 5949, at

*19-20; United States v. Liviola, 605 F. Supp. 96, 100

(N.D. Ohio 1985) (Resource Conservation and

Recovery Act, like Clean Air Act and Clean Water

Act, imposes strict liability because Congress made

intent irrelevant to the question of civil penalties);

State v. Cheraso, 540 N.E.2d 326, 328-329 (Ohio Ct.

App. 1988) (statute stating that “[njo person shall”

take some action without reference to degree of

culpability clearly indicates legislature’s intent to

impose strict hability). The trial court did find that

Meadowlake’s violations of the Act were intentional

and longstanding. This finding, however, was not a

prerequisite for imposing a civil penalty under the

Act. Instead, the trial court considered these facts in

the context of one factor used to determine the

proper amount of a civil penalty under Ohio law—the

degree of a violator’s recalcitrance, defiance, or

indifference to legal requirements. See Ohio v. Tri-

State Group, Inc., No. 03 BE 61, 2004 Ohio App.

Lexis 4036, at *49 (Ohio Ct. App. Aug. 20, 2004)

(citing Dayton Malleable, 438 N.E.2d 120).

Fourth, although civil penalties imposed for

violations of Ohio environmental laws are “primarily

deterrent in nature,” Maginn, 770 N.E.2d at 1104,

the fact that a penalty may deter Meadowlake and

similarly situated owners and operators from similar

violations is not determinative. Rather, labeling a

civil penalty as “criminal” simply because it has a

deterrent effect would seriously undermine the

government’s ability effectively to regulate the public

drinking water. /d. at 105 (“To hold that the mere

presence of a deterrent purpose renders’ such

sanctions ‘criminal’. . . would severely undermine

the Government's ability to engage in effective

regulation.”). Importantly, Hudson specifically notes

that “only the clearest proof will suffice to override

legislative intent and transform what has been

denominated a civil remedy into a criminal penalty.”

Id. at 100 (quoting United States v. Ward, 448 U.S.

242, 249 (1980)).

Fifth, the Act authorizes penalties for behavior

that is not independently criminal. Notably, even

where the conduct for which sanctions may be

imposed “may also be criminal .. . [t]his fact is

insufficient to render the money penalties

criminally punitive.” Jd. at 105.

Sixth and seventh, the Act authorizes civil

penalties as a tool for implementing its regulatory

scheme to “protect the public health and welfare and

to enable the state to assume and retain primary

enforcement responsibility under the [federal] Safe

Drinking Water Act.” Ohio Rev. Code § 6109.03; see

Howard, 444 N.E.2d at 471. Although the penalties

are meant to deter similar conduct, “the mere

presence of this purpose is insufficient to render a

sanction criminal, as deterrence may serve civil as

well as criminal goals.” Hudson, 522 U.S. at 105

(internal quotation and citation omitted).

These factors, considered alongside the Act’s

plain language, reveal that the civil penalties at

issue do not fall within the Excessive Fines Clause’s

purview. Consequently, the facts of this case do not

require the Court to reconsider the Excessive Fines

Clause’s scope or to expand its applicability to a civil

penalty that bears no resemblance to the civil

forfeitures analyzed in Austin and Bajakajian.

B. Even if the Court were to apply the

Excessive Fines Clause, the civil penalty

was not excessive by any definition.

Even if this Court were inclined to reconsider

the scope of the Excessive Fines Clause, the Court

should not grant certiorari in this particular case

because the penalty levied against Meadowlake was

not excessive by any definition. In other words,

regardless of how the Court might interpret the

Excessive Fines Clause, granting Meadowlake’s

petition would not change the result in this action.

The record demonstrates that the trial court

exercised its informed discretion to impose a civil

penalty that was well within the range of civil

penalties authorized by the Ohio General Assembly.

Contrary to Meadowlake’s suggestion, this Court

already has established a clear standard for

analyzing fines under the Excessive Fines Clause,

and lower courts are not confused about how to apply

that standard.

1. The civil penalty was not grossly

disproportional to the gravity of

Meadowlake’s violations.

Under the “constitutional excessiveness

standard” in Bajakajian, “a punitive forfeiture

violates the Excessive Fines Clause if it is grossly

disproportional to the gravity of a defendant’s

offense.” 521 U.S. at 334. Reasoning that the

“principle of proportionality’—that is, that “[t]he

amount of [a] forfeiture must bear some relationship

to the gravity of the offense that it is designed to

punish”—is the touchstone of an inquiry under the

Excessive Fines Clause, the Court considered two

sources when deciding the degree of proportionality

that the Constitution requires. Jd. First, drawing on

its analysis of the Cruel and Unusual Punishments

Clause, the Court observed “that judgments about

the appropriate punishment for an offense belong in

the first instance to the legislature.” Id. at 336

(citations omitted). Second, the Court noted “that

any judicial determination regarding the gravity of a

particular criminal offense will be inherently

imprecise.” Jd. For these reasons, the Court

concluded that it would be inappropriate to “requir|e]

strict proportionality between the amount of a

punitive forfeiture and the gravity of a criminal

offense” and instead adopted “the standard of gross

disproportionality” used to analyze cruel and

unusual punishment challenges. Jd.

The amount of the civil penalty imposed here is

not grossly disproportional to the gravity of

Meadowlake’s offense. The Ohio General Assembly

made the initial judgment about the appropriate

penalty for violations of the Ohio Safe Drinking

Water Act, authorizing a range of civil penalties for

violations. See id. at 336. The Act permits courts to

impose a penalty of up to $25,000 for each violation

and defines each day of noncompliance as a separate

violation. Ohio Rev. Code §§ 6109.31; 6109.33.

Within this framework, the trial court then made the

second judgment about the appropriate amount of

Meadowlake’s penalty. Cf. Bajakajian, 524 U.S. at

336. After finding that Meadowlake committed more

than 1000 violations, the trial court imposed a

$300,000 civil penalty. Meadowlake Corp., 2007

Ohio App. Lexis 5949, at *10. Assuming that

Meadowlake committed only 1000 violations and

that each of those violations lasted only one day—

although in fact some of Meadowlake’s violations

continued for years—the trial court could have

imposed a maximum penalty of $25 million under

the Act. Instead the trial court imposed a penalty

amounting to a mere 1.2 percent of the maximum

authorized penalty, penalizing Meadowlake an

average of $300 per violation.

These facts are easily distinguishable from the

broad, unrestricted language of the forfeiture statute

at issue in Bajakajian, which required a “court, in

imposing sentence on a person convicted of an

offense .. . [to] order that the person forfeit to the

United States any property, real or personal,

involved in such offense, or any property traceable to

such property.” 524 U.S. 321, 325 (quoting 18 U.S.C.

§ 982(a)(1)). In Bajakajian, the defendant violated a

law requiring customs declarations of any cash

amount exceeding $10,000 by failing to report the

entire $357,144 he was bringing into the United

States. Jd. at 324, 337-338. The government seized

the entire amount pursuant to the broad language of

the forfeiture statute. Jd. at 324-325. The Court

found that the seizure violated the Excessive Fines

Clause for two reasons. First, the defendant was not

within the class of persons for whom the statute was

principally designed—money launderers, drug

traffickers, and tax evaders—because he was

bringing legally obtained money into the United

States for a iegal purpose. /d. at 338. Second, the

defendant’s violation caused minimal harm, affecting

only the government and doing so only in a relatively

minor way. Id. at 339.

Unlike the defendant in Bajakajian,

Meadowlake is within the precise class of persons

that Ohio’s Safe Drinking Water Act is designed to

regulate. Moreover, unlike the forfeiture statute in

Bajakajian, Ohio Revised Code § 6109.33 establishes

a ceiling on the civil penalty a trial court can impose,

and Meadowlake’s penalty is well below that ceiling.

Finally, Meadowlake caused more than minimal

harm. Although the State of Ohio could not

determine the full extent of the harm caused because

Meadowlake never submitted the _ statutorily

required sampling data, Meadowlake created a

serious risk to the public health by failing to monitor

and treat water from its PWS before serving that

water to the public. This risk to the public health

was augmented by the intentional and long-standing

nature of Meadowlake’s violations.

Consistent with the Act, the trial court properly

exercised its informed discretion to determine the

amount of the civil penalty in accordance with

factors articulated by the Ohio Supreme Court. See

Tri-State Group, Inc., 2004 Ohio App. Lexis 4036, at

*49 (citing Dayton Malleable, 438 N.E.2d 120). The

trial court considered several factors established at

common law when deciding to impose a civil penalty

well below the statutory maximum. Such factors

included: (1) the harm (or threat of harm) to the

environment caused by Meadowlake’s actions;

(2) Meadowlake’s degree of “recalcitrance, defiance,

or indifference”; (3) the economic benefit Meadowlake

accrued due to its violations; and (4) unusual or

extraordinary costs to enforce the statute.

Meadowlake Corp., 2007 Ohio App. Ct. Lexis 5949, at

*21-25; see Tri-State Group, Inc., 2004 Ohio App.

Lexis 4036, at *49. The trial court also considered

the extent of Meadowlake’s business operations.

Unlike the statute authorizing the civil forfeiture in

Bajakajian, Ohio’s Safe Drinking Water Act did not

give the trial court broad authority to seize all of

Meadowlake’s real or _ personal property § as

instrumentalities used to commit Meadowlake’s

violations.

Meadowlake’s civil penalty is not grossly

dispropriational to the gravity of its offense. The

trial court deferred to the legislature’s initial

judgment about the appropriate penalties for

violations of the Act, then exercised its informed

discretion to penalize Meadowlake in an amount

equal to a mere 1.2 percent of the maximum

authorized penalty. Furthermore, Meadowlake

risked the public health by failing over a significant

period of time to monitor and treat its PWS in accord

with Ohio law. For these reasons, this civil penalty

was not clearly disproportional to the gravity of

Meadowlake’s violations of Ohio’s Safe Drinking

Water Act.

2. The lower courts’ reliance on different

factors to evaluate excessiveness does

not indicate confusion about the

standard for evaluating whether a fine

is unconstitutionally excessive.

Although Meadowlake acknowledges’ the

proportionality test set forth in Bajakajian, it

expresses concern that “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.” Pet. at 15. To the

contrary, lower courts are clear about the fact that a

civil forfeiture violates the Excessive Fines Clause if

the amount of the _ (forfeiture is_ grossly

disproportional to the offense it is designed to

punish. Lower courts simply have considered a

variety of factors, as the Court itself did in

Bajakajian, to evaluate whether a particular fine is

grossly disproportional to the gravity of an offense in

a particular context.

Meadowlake cites five cases as evidence that

lower courts have applied different tests for

evaluating the excessiveness of a fine _ post-

Bajakajian. Three of these cases illustrate

applications of Bajakajian’s gross disproportionality

test. Towers v. City of Chicago, 173 F.3d 619, 624-26

(7th Cir. 1999) (considering the gravity of the

offense, the offenders’ culpability, the harm caused

by the offense, and the amount of the fine in relation

to the gravity of the offense); Tyson v. Amerigroup

Illinois, Inc., 488 F. Supp. 2d 719, 742-48 (N.D. Il.

2007) (considering a variety of factors when

performing a gross disproportionality inquiry); Cox

for U.S. Senate Comm. v. FEC, No. 03 C 3715, 2004

U.S. Dist. Lexis 6939, *42-47 (N.D. Ill. 2004)

(conducting a _gross_ disproportionality inquiry

consistent with the Towers analysis). In the other

two cases, courts concluded that a civil penalty is not

excessive when it falls within the limits prescribed

by the authorizing statute. Newell Recycling Co.,

Inc. v. U.S. EPA, 231 F. 3d 204, 210 (5th Cir. 2000);

Kelly v. U.S. EPA, 203 F.3d 519, 524 (7th Cir. 2000).

None of these cases reflects confusion about applying

Bajakajian; the cases simply reflect lower courts’

decisions to consider different factors when

evaluating gross disproportionality in the context of

different penalties.

Meadowlake also suggests that lower courts are

confused about the relationship between the Court’s

excessive fines jurisprudence and the Civil Penalty

Policy articulated in the federal Clean Water Act,

codified at 33 U.S.C. § 1319. But this case does not

implicate the Clean Water Act and, even if it did,

Meadowlake’s concerns are misplaced. The Clean

Water Act identifies six factors that a trial court may

consider when exercising its discretion to decide the

amount of a civil penalty imposed for Clean Water

Act violations. Jd. at § 1319(d). The analysis used to

determine the amount of a civil penalty is entirely

distinct from the analysis of whether that same

penalty violates the Excessive Fines’ Clause.

Moreover, even if a court were to consider some Civil

Penalty Policy factors when evaluating whether a

fine is “grossly disproportional,” that would not

indicate confusion about the appropriate test for

determining whether a fine is unconstitutionally

excessive. The Court in Bajakajian established a

gross disproportionality test, but it did not limit

lower courts to considering only certain factors when

evaluating whether a particular fine is_ grossly

disproportional to the gravity of an offense.

Finally, Meadowlake does not cite a single case

where a court has invalidated as unconstitutionally

excessive a civil penalty awarded under an

environmental _ statute. Meadowlake’s petition

references only four cases involving environmental

statutes, none of which held that a penalty awarded

for violations of an environmental statute was

unconstitutionally excessive. See Newell, 231 F.3d at

210 (affirming a civil penalty amounting to ten

percent of the maximum penalty authorized by Toxic

Substances Control Act); United States v. Production

Plated Plastics, Nos. 93-2055, 93-2618, 1995 US.

App. Lexis 20539, at *11-13 (6th Cir. July 19, 1995)

(per curiam) (unpublished) (affirming a civil penalty

amounting to less than two percent of the maximum

penalty authorized by Resource Conservation and

Recovery Act); Kelly 203 F. 3d at 524 (affirming a

civil penalty amounting to seven percent of the

maximum penalty authorized by Clean Water Act);

United States v. Nevada Power Co., No. CV-S-87-861-

RDF, 1990 U.S. Dist. Lexis 18998, at *15-19 (D. Nev.

June 1, 1990) (finding that a civil penalty of up to

$25,000 per day under the Clean Air Act does not

violate the Excessive Fines Clause, even where an

administrative penalty was imposed in an earlier

proceeding). Accordingly, none of these cases

supports Meadowlake’s claim that either the range of

civil penalties authorized by Ohio’s Safe Drinking

Water Act or the particular civil penalty imposed

here violates the Eighth Amendment Excessive Fines

Clause.

For these reasons, Meadowlake’s efforts to

portray confusion among lower courts are misplaced.

Bajakajian did not articulate specific factors that

courts must apply when evaluating proportionality,

instead holding only that “a punitive forfeiture

violates the Excessive Fines Clause if it is grossly

disproportional to the gravity of a defendant’s

offense.” 521 U.S. at 334. Meadowlake does not cite

any cases that are inconsistent with the Bajakajian

standard or suggest confusion about that standard.

Accordingly, no controversy or confusion exists

among lower courts about whether the Excessive

Fines Clause applies to civil environmental statutes

authorizing courts to impose civil penalties within a

specific range.

C. Meadowlake had aéeé full and _ fair

opportunity to exercise its due process

rights where it had ample notice of the

trial date and, without justifiable excuse,

failed to secure timely representation.

Meadowlake’s due process claims fail to present

any new question of law and do not merit this

Court’s attention. In fact, Meadowlake had every

opportunity to exercise its constitutional due process

rights and forfeited those opportunities by its own

conduct.

Due process is founded upon notice and an

opportunity to be heard. Jones v. Flowers, 547 U.S.

220, 226 (2006) (citing Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950)). The

opportunity to be heard “must be granted at a

meaningful time and in a meaningful manner.”

Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

Moreover, “[t}he right to a hearing embraces not

only the right to present evidence but also a

reasonable opportunity to know the claims of the

opposing party and to meet them.” Morgan v. United

States, 304 U.S. 1, 18 (1938).

In this case, Meadowlake had its first

opportunity to be heard at a jury trial on January 9,

2006. Meadowlake Corp., 2007 Ohio App. Lexis

5949, at *6. Meadowlake ultimately forfeited this

opportunity by misconduct—the trial court declared

a mistrial because Meadowlake’s CEO failed to heed

the court’s admonitions about indoctrinating the jury

on matters beyond the scope of the trial. Jd. at *6.

On March 9, 2006, the trial court gave Meadowlake

approximately eighty-days’ notice of the new trial

date—May 30, 2006. /d. The trial court confirmed

the new trial date on March 23, 2006, and again on

May 19, 2006. Jd. at *8. Meadowlake then had a

second opportunity to be heard at the May 30, 2006

bench trial. Jd.

Meadowlake suggests that in spite of this notice

and formal opportunity to be heard, it was not

meaningfully able to exercise its due process rights

because it was unrepresented during the bench trial

and, as a corporate entity, could not represent itself.

Although courts must afford parties a meaningful

opportunity to exercise due process rights, the

parties themselves bear responsibility for taking

advantage of that opportunity by exercising their

rights. By contrast, if a party of its own volition fails

to exercise its right to be heard in an effective

manner, the party effectively waives due process. As

this Court explained in Boddie v. Connecticut, 401

U.S. 371 (1971),

Due process does not, of course, require

that the defendant in every civil case

actually have a hearing on the merits. A

State, can, for example, enter a default

judgment against a defendant who, after

adequate notice, fails to make a timely

appearance, or who, without justifiable

excuse, violates a procedural rule requiring

the production of evidence necessary for

orderly adjudication. What __—itthe

Constitution does require is “an

opportunity ... granted at a meaningful

time and in a meaningful manner.”

Id. at 378 (internal citations omitted). Meadowlake

should not be permitted to waste a court’s time by

forfeiting its opportunity to present a case at trial,

only to argue later that due process was violated.

In this case, Meadowlake had ample notice of

the second trial date, and therefore ample time to

secure new counsel to participate meaningfully in

the bench trial. Meadowlake’s counsel sought to

withdraw from representation on the same day the

trial court announced the _ second trial date.

Meadowlake Corp., 2007 Ohio App. Lexis 5949, at

*6-7. _Meadowlake did not object to counsel’s

withdrawal, specifically indicating that it would

secure new counsel after Meadowlake’s CEO

returned to Ohio on April 20, 2006. Jd. at *7. When

the trial court granted counsel Jeave to withdraw, the

court specifically advised Meadowlake that, as a

corporate entity, it could not proceed in court without

representation. Jd. at *7-8. The trial court ordered

Meadowlake to secure counsel immediately and

specifically warned that if Meadowlake chose to

waive representation it would be unable to “file

pleadings, present further defense[,] . . . or otherwise.

represent the interests of the corporate defendants.”

Id. at *8. Meadowlake allegedly contacted potential

counsel about the representation, but counsel was

unable to represent Meadowlake at the bench trial

due to a serious personal injury. Jd. at *12.

Regardless, no counsel entered an appearance on

Meadowlake’s behalf before the bench trial, filed a

motion to continue the trial, or appeared at the

scheduled trial. Jd. at *13. New counsel did not

appear on Meadowlake’s behalf until after the bench

trial concluded, when Meadowlake requested a post-

trial evidentiary hearing. Id. at *9.

The trial court did not in any way violate

Meadowlake’s due process rights. In contrast to

situations where a court imposes some limitation on

a party’s ability to advocate, see, e.g., Jenkins uv.

McKeithen, 395 U.S. 411, 428-29 (1969),

Meadowlake’s own actions limited its ability to

advocate on its own behalf. The trial court did not

cause the mistrial, refuse Meadowlake admission to

the courtroom, or prevent Meadowlake from

presenting a defense. To the contrary, the trial court

urged Meadowlake to obtain counsel months before

the bench trial so it would not forfeit its due process

rights. Meadowlake Corp., 2007 Ohio App. Lexis

5949, at *7-8. By failing to hire an attorney in a

timely fashion, Meadowlake failed to do what it

knew was required to be able to fully and properly

exercise its rights.

For these reasons, Meadowlake’s due process

allegations do not warrant this Court’s time or

attention.

CONCLUSION

For the foregoing reasons, Meadowlake’s

petition for writ of certiorari should be denied.

December 5, 2008

Respectfully submitted,