Reply Brief — Waste Recovery Enterprises, LLC v. Town of Unadilla

2

A

No. 03-1390

IN THE

Supreme Court of the United States

WASTE RECOVERY ENTERPRISES, LLC.,

Petitioner,

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TOWN OF UNADILLA and TOWN SUPERVISOR

JAMES A. WESTCOTT,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK COURT OF APPEALS

REPLY TO BRIEF IN OPPOSITION Z

RICHARD J. BRICK WEDDE*

Attorney for Petitioner

One Park Place, Suite 400

Syracuse, NY 13202-2004

(315) 423-3302

*Counsel of Record

THE REPORTER COMPANY, Printers and Publishers, Inc.

120 East Washington Street, Syracuse, NY—315-426-1235

(S616 -— 2004)

Printed on Recycled Paper

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TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT

POINT I

THE SUBSTANTIVE RESULT OF THE SEVERANCE

IS TO CAUSE AN UNCONSTITUTIONAL DEPRIVA-

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TABLE OF AUTHORITIES

CASES: Page

Bouie v. City of Columbia, 378 US 347 ................ 2

People v. Liberta, 64 N.Y. 2d 152 (1984) .............. I

Constitution and statutory provisions:

Articles of Confederation ........................... 3

U.S. Constitution Art I, §3,clause8 .................. 3

Other Authorities:

The Path of the Law, 10 Harv. L. Rev. GOW caaes vente ]

A Norm-Based Remedial Model for Underinclusive

Statutes, 95 Yale R. Rev. 1185 .................... l

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REASONS FOR GRANTING THE WRIT

POINT I

THE SUBSTANTIVE RESULT OF THE SEVERANCE

IS TO CAUSE AN UNCONSTITUTIONAL

DEPRIVATION OF RIGHTS

Respondents cite to People v. Liberta, 645 N.Y. 2d 152

(1984), cert. denied 471 U.S. 1020 (1985). Liberta is both

instructive and distinguishable from the case in question.

A. Liberta involved a statute which defined rape as a crime

which could be only committed by a male against a female.

Amongst other defenses, the defendant alleged the rape statute

violated the “equal protection provision because only men, and

not women,” could be prosecuted @ 158.

Rape and other gender based laws arose out of an historical

artifact concerning the role and rights of woman. As the court

quoted Mr. Justice Holmes in Liberta @ 167 “It is revolting to

have no better reason for a rule of law than that so it was laid

down in the time of Henry IV.” 10 Harv. L Rev 457, 469.

Without reference to any severance provision in the law, the

court in Liberta found certain provisions of the law unconstitu-

tional as violating equal protection, severed a part of the law,

and rewrote the word “male” to read person. Pointing out the

horrific consequences of reversing the conviction on equal

protection grounds, the court affirmed the conviction because

“the defendant is simply not similarly situated to those persons

who were not within the scope of the statutes as they existed

prior to our decision.” @173. See generally “A Norm-Based

Remedial Model for Underinclusive Statutes” 95 Yale L.

Journal 1185 and specifically fns. 81, 88.

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Respondents in their Brief in Opposition in this case treat this

Petition as simply a case where the scope of the legislative

power to sever is the question before the court. But that is really

not the question. The question could better be framed: Even if

the legislative body would have liked the court to sever the

exception and broaden the scope of the criminal law, substan-

tively can the courts allow that to happen.

Should a legislative body be allowed to allow, and should a

court be allowed to, with or without legislative authorization,

sever an exception to a criminal law such that as a result of the

court’s action, the criminal law becomes broader, rather than

narrower, without public notice, public comment and an action

by the legislative body that puts the public, the target of the law,

On notice that if they take the prescribed action, they are

committing a crime for which they could be imprisoned for a

substantial period of time.

In Bouie v. City of Columbia, 378 US 347, the State Supreme

Court broadened its interpretation of a criminal law:

The thrust of the distinction, however, is to produce a

potentially greater deprivation of the right to fair

notice in this sort of case, where the claim is that a

Statute precise on its face has been unforeseeably and

retroactively expanded by judicial construction. .. @

352

That is precisely the situation created by the court’s severance

of the exception in this case.

Perhaps because of the difficulty of prosecuting a female for

rape when females are not named as potential defendants in the

statute, the State of New York amended the law in question the

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year following this Court’s denial of cert (Ch 810 laws of 1987)

to make the statute gender neutral.

B. The present case involves not an historic artifact based

upon sex discrimination and equal protection, but a violation of

the Commerce Clause of the Constitution Art. I, § 8, clause 3 the

provision that led the early American government to draft and

adopt the Constitution as a successor to the Articles of Confed-

eration. Unlike a sex based equal protection argument, the State

Courts’ decisions have the result of sanctioning the last remnant

of three local laws all of which violated the Commerce Clause

as written and two of which have already been struck down by

the NY Courts in their entirety. Waste Recovery Enterprises

would also be subject to the law as rewritten by the courts. In

those circumstances, regardless of a severance provision likely

added to the cookie cutter law with little thought, the law should

be struck in its entirety and not salvaged in a way which makes

this criminal law broader rather than narrower.

CONCLUSION

Certiorari should be granted, and the Order of the state Courts

modified to find the law unconstitutional in its entirety.

Richard J. Brickwedde*

Attorneys for Petitioner

One Park Place, Suite 400

Syracuse, NY 13202-2004

: 315-423-3302

*Counsel of Record