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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. John G. Grant & Sons Co., 403
Supreme Judicial Court of Massachusetts,
Argued
Decided
James M. Burke,
James A. Paisley, Sp. Asst. Dist. Atty., for Com.
Before [403
[403
The
defendant corporation was found guilty by a jury on a complaint charging it
with filling or altering a fresh water wetland subject to flooding in violation
of G.L. c. 131, § 40, and of a by‑law of the
town of
The
defendant appealed. The
The
defendant operates a business on premises at 60 Garden Park in Braintree. Its principal activities are the demolition
of buildings and the rental of heavy equipment.
From time to time, there are large piles of scrap metal and rubbish on
the site. As we shall explain later, the
evidence would have warranted a finding that the portion of the premises
allegedly filled by the defendant was a fresh water wetland subject to
flooding. The principal factual contest
at trial was whether the defendant had filled the area. The defendant contended at trial that any
filling had been done by predecessors in title.
The Commonwealth presented evidence of the filling of a portion of the
wetland on the site on various occasions while the defendant owned the
property.
[1][2] 1.
The defendant argues that, because G.L. c. 131 has
two distinct and dissimilar provisions prescribing penalties for the violation
of § 40, the statutory pattern is unconstitutionally vague in violation of its
right to due process of law and the complaint must be dismissed. The concept that a criminal statute may be
void for vagueness is based in part on the principle that a person should be
able to know what conduct is criminal and what will be the consequences to him
of a violation of that statute. See
United States v. Harriss, 347 U.S. 612,
617, 74 S.Ct. 808, 811‑812, 98 L.Ed. 989 (1954); Commonwealth v. Jasmin,
396 Mass. 653, 655, 487 N.E.2d 1383 (1986).
The concept is also founded in part on the principle that the statute
should provide sufficient standards to control prosecutorial and judicial
discretion. See Grayned
v. Rockford, 408 U.S. 104, 108‑109, 92 S.Ct.
2294, 2298‑2299, 33 L.Ed.2d 222 (1972); Commonwealth v. Williams,
395 [403 Mass. 154] Mass. 302, 304‑305, 479 N.E.2d
687 (1985). Economic regulatory
legislation, as here, is subject to a less strict
vagueness test than legislation, for example, inhibiting the exercise of
constitutionally protected rights of free speech or of association. See Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 498‑499, 102 S.Ct.
1186, 1193‑1194, 71 L.Ed.2d 362 (1982); Commonwealth v. Sefranka, 382 Mass. 108, 110‑111, 414 N.E.2d 602
(1980). In the circumstances, the
defendant may assert only its rights and not those of others who might be
affected differently. Commonwealth v. Jasmin,
supra 396 Mass. at 655, 487 N.E.2d 1383.
The defendant makes no claim that it has greater rights under the State
Constitution than under the Constitution of the United States.
In this
case there is no claim that § 40 does not state with sufficient clarity that
the filling or altering of certain areas, such as wetlands, is unlawful unless
the procedural and substantive requirements of § 40 are complied with. In other words, the defendant does not assert
that § 40 is unclear or vague, in a constitutional sense, with respect to the
conduct made unlawful. The problem
arises because § 40 itself sets forth penalties for its violation, (FN3) and G.L. c. 131, § 90, does so as well, but in different
terms. (FN4)
Because
the defendant is a corporation and corporations cannot be imprisoned, we need
focus only on the range of fines set forth in the two sections. Section 40 prescribes a fine of not more than
$1,000 for its violation and provides that each [403 Mass. 155] day of
continuing violation shall constitute a separate offense. Section 90 provides a fine of not less than
$100 nor more than $5,000 for a violation of § 40. There is no doubt that the Legislature
intended that a fine could be imposed on a corporation for its violation of §
40. If we construe the two statutes so
that each imposes restraints on the permissible fine, so that the total fine
for all acts of the same character in violation of § 40 at the same site cannot
exceed $5,000 (§ 90) and the fine for each act in violation of § 40 cannot
exceed $1,000 (§ 40), the defendant can hardly complain that it was not on
notice of that potential penalty. In so
doing, we construe the statutory enactments in the defendant's favor and impose
on the defendant a penalty falling within the limitations of each statute. This construction fulfils, as far as
possible, the twice expressed legislative purpose that a corporation should be
fined for violations of § 40. As will be
seen, this approach meets the requirements of due process under the decided
cases. If we apply this construction of
the penalty provisions of G.L. c. 131, §§ 40 and 90,
the defendant could not have been misled and the prosecutor and any sentencing
judge would have no impermissible range of discretion.
[3] The
principle that no one may be required at his peril to speculate as to the
meaning of a criminal statute applies to sentencing as well as to substantive
provisions. See Commonwealth v. Gagnon, 387
Mass. 567, 569, 441 N.E.2d 753 (1982), citing United States v. Batchelder, 442 U.S. 114, 99 S.Ct.
2198, 60 L.Ed.2d 755 (1979), and United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823
(1948). In the Evans case, the statute simply failed to provide a penalty for
certain conduct which it made criminal.
The Court held that the problem could not properly be resolved by
judicial interpretation and thus was beyond the competence of the Court. Id. at 495, 68 S.Ct.
at 641. That case, consequently, was
not a void for vagueness case. It
involved an absence of a stated penalty rather than, as here, an excess of
penalty provisions. The Batchelder
case is more instructive for our purposes.
There, two statutes made the same conduct criminal and prescribed
different maximum penalties. The
defendant was found guilty under the statute having the higher maximum penalty,
and the Supreme Court upheld a sentence
[403 Mass. 156] based on that
provision. The Court said: "Although the statutes create
uncertainty as to which crime may be charged and therefore what penalties may
be imposed, they do so to no greater extent than would a single statute
authorizing various alternative punishments.
So long as overlapping criminal provisions clearly define the conduct
prohibited and the punishment authorized, the notice requirements of the Due
Process Clause are satisfied." Id. 442 U.S. at 123, 99 S.Ct. at 2204.
The
Appeals Court concluded that the penalty provisions of G.L.
c. 131, concerning a violation of § 40 were impermissibly vague substantially
on the basis of this court's holding in
Commonwealth v. Gagnon, supra. We
think this case presents a far less serious level of uncertainty than the Gagnon case did and does not require
dismissal of the charges. In the Gagnon case, the conflict between the
legislative directions was substantial and irreconcilable. One provision allowed punishment by
imprisonment or a fine, or both. Another
provision mandated a minimum one‑year term of imprisonment. There was no basis on which the inconsistency
could be resolved. There was, for
example, no instructive legislative history.
Contrast United States v. Restrepo,
676 F.Supp. 368, 375 (D.Mass.1987), in which the
judge, confronted with a problem similar to that presented in the Gagnon case, concluded that the
legislative history resolved the dilemma.
In the
case before us we have no fundamental inconsistency between the two penalty
provisions. In the Gagnon case, there was, in contrast, a provision for a mandatory
prison sentence which conflicted with a provision authorizing simply the
imposition of a fine. Here the penalty
of a fine is an option, indeed as to a corporation the only option, under each
statutory provision. The only possible
uncertainty is the amount of the fine.
Although
we agree with the Appeals Court that neither penalty provision is more specific
than the other and thus controlling (
Commonwealth v. John G. Grant & Sons Co., 24 Mass.App.Ct.
690, 691‑692, 512 N.E.2d 522 [1987] ), we see no such wide disparity of
potential sentences under the two provisions as did the Appeals Court. See 24 Mass.App.Ct.
at 692, 512 N.E.2d 522. The Appeals
Court concluded, by implication, that each day unauthorized [403 Mass. 157] fill
remained on the premises warranted a separate fine. On that theory a fine of $1,000 a day under
the penalty provisions of § 40, over a period of more than two years, presented
a substantial potential variation from the maximum fine of $5,000 under § 90. Id.
[4] The
defendant properly has argued in the trial court and on appeal that it was
charged with filling or altering a fresh water wetland and not with leaving
fill on such a wetland. Indeed, it
argues correctly that § 40 does not make a crime of leaving unauthorized fill
in a wetland. Section 40 provides in its
last paragraph that each day of continuing violation (e.g., each day of filling
or altering) constitutes a separate offense.
That language avoids the treatment of all acts of unlawful filling as a
single, continuous offense. See
Commonwealth v. Donovan, 395 Mass. 20, 29, 478 N.E.2d 727 (1985);
Commonwealth v. Peretz, 212 Mass. 253,
254, 98 N.E. 1054 (1912). This criminal
statute cannot properly be construed, however, as making a daily criminal wrong
of the continuing presence of fill unlawfully placed on particular premises. The presence of the unauthorized fill is a
continuing wrong warranting injunctive relief, but the presence of unauthorized
fill is not a criminal act, continuing or otherwise, under § 40. The potential disparity of sentences under
the two
penalty provisions is not, therefore, so great as the Appeals Court
believed. (FN5)
[5] We
conclude, consequently, that the imposition of a fine on the defendant in this
case, assuming a valid conviction under § 40, would not be a denial of due
process of law under either the State Constitution or the Constitution of the
United States if the restraints on the permissible range of the fine, derived
from each statute, are imposed. Thus the
complaint against the defendant should not be dismissed, as the Appeals Court [403 Mass. 158] directed. We, therefore,
turn to the defendant's other challenges to its convictions.
[6] 2. The
defendant argues that the complaint charged only one offense, and that it was
barred by the applicable two‑year statute of limitations. G.L. c. 131, § 91
(1986 ed.). The proceeding was commenced
by a complaint dated June 10, 1985 (see Mass.R.Crim.P.
3[a], 378 Mass. 847 [1979] ), alleging violations of G.L.
c. 131, § 40, and the cognate Braintree by‑law "on or about November
3, 1982, and thereafter." The
defendant did not directly raise the statute of limitations issue before trial
or during trial, although it could have done so in various ways. (FN6)
The Commonwealth does not challenge, however, the defendant's right to
raise the statute of limitations issue on appeal, and we think we should
consider it.
At various
stages in the pretrial proceedings, and at trial, the judge ruled that the
offense was a continuing one or that, once fill had been unlawfully deposited,
its continuing presence permitted the imposition of a daily fine of $1,000. We already have stated our disagreement with
the idea that § 40 defines a continuing offense, that is, that once fill is
unlawfully deposited, each day the fill remains in place is a separate offense
or a continuation of the offense warranting a separate fine. The judge's ruling that the offense was a
continuing one improperly permitted the admission of evidence of violations
occurring more than two years prior to the commencement of the proceeding. (FN7)
There must
be a new trial because the case was tried and presented to the jury on the
basis of the judge's erroneous ruling that it did not matter when the defendant
placed the fill [403 Mass. 159] on the wetland because the complaint
charged, and § 40 defined, a continuing offense. Because the statute of limitations is two
years, only an offense occurring within two years prior to the date the
prosecution was commenced may be the basis of any conviction in this case on
retrial. The Commonwealth may wish to consider
whether it should move to amend the complaint to set forth each offense in a
separate count of the complaint. See Mass.R.Crim.P. 9(a)(2), 378 Mass. 859 (1979). If the complaint is not so amended, the
defendant is entitled to the bill of particulars that it sought before
trial. The bill of particulars should
set forth the approximate range of time or date when the defendant is alleged
to have violated the statute and the by‑law.
[7] 3. The
defendant moved before trial to suppress evidence obtained as a result of warrantless searches or inspections of the premises that
the Braintree conservation commission and its agents conducted without the
defendant's permission. The commission's
chairman at the time of these inspections testified that he had been on the
defendant's property five or six times to check for violations. On four occasions he took photographs, and on
several occasions he took samples of materials from the site. On some occasions the owner told him that he
was not authorized to go on to the premises.
He never obtained a search warrant, nor at any time did he obtain
permission to go on the premises or to remove materials. Other members and agents of the commission
also went on the site.
The motion
judge accepted the Commonwealth's argument that members and agents of the
conservation commission lawfully entered on the land pursuant to authority
granted by G.L. c. 131, § 40. The defendant argues that, because the
conservation commission and its agents have no duties under § 40 to gather
evidence or to prosecute complaints for violations of § 40, they had no
authority to conduct warrantless searches of wetlands
and other areas subject to § 40.
[8] We
agree with the defendant that § 40 does not authorize a conservation commission
or its agents to enter on private land to inspect for violations of law. Section 40 does state that "the
conservation commission and its agents, officers and employees[403 Mass. 160] ... may enter upon
privately owned land for the purpose of performing their duties under this
section." The responsibility for
enforcement of § 40, however, is placed on "natural resource officers,
deputy natural resource officers, and any officer having police
powers." See G.L.
c. 131, § 40, last paragraph, as appearing in St. 1974, c. 818, § 1. (FN8) A conservation commission's duties under § 40
involve the processing of applications filed concerning proposed undertakings
on lands subject to § 40. Because
enforcement is not one of the duties of a conservation commission under § 40, a
commission member or an agent of a commission as such has no duty or authority
under § 40 to conduct a warrantless search of
premises in circumstances such as these.
A general grant to roam at will through all areas in a municipality that
are subject to § 40 in search of unlawful conduct would present substantial
constitutional questions. We are
persuaded that the Legislature intended no such broad grant of authority. Section 40 does not even grant a right to
conduct warrantless inspections to police officers
who are explicitly authorized to enforce § 40.
[9] On his
own, the judge advanced the Supreme Court of the United States' open fields
doctrine as an independent basis for his denial of the defendant's motion to
suppress. See 1 W.R. LaFave,
Search and Seizure, § 2.4 (a) (2d ed. 1987).
On appeal the Commonwealth has endorsed the judge's invocation of the
open fields doctrine. The principle in
general is that open fields are not protected by the Fourth Amendment to the
United States Constitution. See
Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct.
1735, 1742, 80 L.Ed.2d 214 (1984). It is
not clear that land developed for commercial uses falls into the open fields
category. See id. at 180 n. 11, 104 S.Ct. at 1742 n. 11.
This court has not adopted a parallel principle under art. 14 of the
Massachusetts Declaration of Rights, which defines the scope of its protection
in language somewhat different from that of the Fourth Amendment.
We are not
persuaded that, even if we were to accept the open fields principle as
appropriate under art. 14 of the Declaration[403 Mass. 161] of Rights, the evidence was sufficient to
allow a conclusion that the Commonwealth had met its burden of showing the
lawfulness of each search and seizure on the defendant's premises. The judge made no findings of fact. The chairman of the conservation commission
testified that, prior to his entrance on some locations, the owner had advised
him that he was not authorized to go on the premises. On one occasion the owner asked the police to
remove him when he went onto the premises after the owner had told him not to
do so. Unless the judge disbelieved this
uncontroverted
evidence of the owner's objection to entry onto its property, and there is
no indication that he did, certain evidence admitted at the trial appears to
have been seized as a result of a criminal trespass onto the defendant's
property. The judge made no ruling that
a warrantless search was justified on some
traditional exception to the warrant requirement. (FN9)
Without findings concerning the circumstances of each occasion on which
the chairman of the conservation commission (and others) entered the
defendant's property unlawfully and contrary to the owner's explicit direction
not do so, we are unwilling to conclude that photographs, observations, and
particularly materials taken were not obtained in violation of the defendant's
rights under art. 14 (and perhaps even under the Fourth Amendment). There must be further findings as to the searches
and seizures that produced evidence relevant to the proof of alleged violations
occurring within two years of the filing of the complaint, if the Commonwealth
wishes to rely on that evidence at any retrial.
[10] 4.
The judge denied the defendant's motion for a required finding of not guilty. The defendant argues that the Commonwealth
failed to prove that it altered or filled a freshwater wetland subject to
flooding. (FN10) We conclude that the evidence was sufficient
to present a jury question.
[403 Mass. 162] There was testimony from several qualified people that the
property had wetland vegetation, as defined in § 40, and that it was a wetland
or a swamp. Several witnesses saw
standing water on the site. It is not
easy to sort out whether any of this testimony may be subject to suppression
for reasons discussed in the next prior section of this opinion. It is easy, however, to see that at least
some of the credible evidence concerning the nature of the site was not subject
to any such taint and warranted a finding that the area allegedly filled had
been a fresh water wetland.
On the
question of flooding, the town engineer testified that the property was in the
floodplain of the Monadiquot River and that, whenever
a large flood occurs on the river, the swampy area on the site would be under
water. A flood insurance rate map
promulgated by the Federal Emergency Management Agency, the admission of which
in evidence the defendant does not challenge on appeal, showed the defendant's
property to be within the 100‑year floodplain.
The
evidence also warranted a finding that there had been filling of the wetland
and that the filling was done by the defendant.
There was testimony, for example, that in November, 1984, an earth
moving vehicle was seen pushing debris into the wetlands. The debris appeared to be building material
of the type the defendant carried onto its property.
We are not
able to say that the Commonwealth will be unable to prove its case even if
evidence acquired on the site is suppressed.
See Commonwealth v. Brouillet,
389 Mass. 605, 608, 451 N.E.2d 128 (1983); Commonwealth v. Taylor, 383 Mass. 272,
284‑285, 418 N.E.2d 1226 (1981).
There is no basis for ruling that the defendant was entitled to a
required finding of not guilty.
5. The
judgment is vacated. The jury verdict is
set aside, and the case is remanded for further proceedings consistent with
this opinion.
So ordered.
(FN1.) The appeal is focused solely on the
conviction pursuant to G.L. c. 131, § 40. The parties appear to agree that the
conviction for the violation of the by‑law stands or falls with the
conviction under § 40.
(FN2.)
We have found no indication that the defendant raised this issue at the trial
level, but, because the Appeals Court considered the point and the Commonwealth
does not challenge the defendant's right to make this argument on appeal, we
decide the issue.
(FN3.)
The last paragraph of § 40, as appearing in St. 1974, c. 818,§ 1, and prior to
its amendment by St. 1987, c. 174, § 19, provided as follows: "Whoever violates any provision of this
section shall be punished by a fine of not more than one thousand dollars or by
imprisonment for not more than six months or both. Each day or portion thereof of continuing
violation shall constitute a separate offense.
This section may be enforced by natural resource officers, deputy
natural resource officers, and any officer having police powers."
(FN4.)
The fifth paragraph of G.L. c. 131, § 90, as
appearing in St. 1971, c. 149, before it was struck out by St. 1987, c. 174, §
21, provided as follows: "Whoever
violates any provision of section forty, or of any rule or regulation made
under authority thereof, shall be punished by a fine of not less than one
hundred dollars nor more than five thousand dollars, or by imprisonment for not
more than two years, or both.
(FN5.)
One problem with making the continued presence of unlawfully placed fill either
a separate daily offense or a continuing offense warranting a daily fine is
that the removal of the material would also be a crime unless the owner
complied with the permit provisions of § 40 and obtained permission to remove
the material. There was discussion in
the sentencing phase of this case suggesting that the removal of any unlawfully
placed fill might be more harmful to the environment than leaving it there.
(FN6.)
For example, by objection to the admission of evidence or by a request for jury
instructions limiting the time within which the jury could find a violation.
(FN7.)
At trial the judge also allowed evidence to be admitted of violations allegedly
occurring after the date of the complaint and allowed the jury to consider postcomplaint violations as violations charged under the
complaint. On appeal the defendant does
not challenge that action. Evidence of
crimes committed after the date a complaint was issued cannot properly be the
basis of a conviction.
(FN8.) That paragraph was amended by St. 1987,
c. 174, § 19, to delete the reference to deputy environmental officers.
(FN9.) It seems reasonably clear that the police
had probable cause and could have obtained a search warrant.
(FN10.) The complaint alleged that the
defendant altered or filled a fresh water wetland subject to flooding. There also was evidence that the filled land
bordered on a river. We do not pause to
decide whether the unauthorized filling of a fresh water wetland bordering a
river would violate § 40 only if it is proved that the area was subject to
flooding. We deal here with the
allegations of the complaint.