OCTOBER TERM, 1999
Syllabus
FIORE v. WHITE, WARDEN, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 98-942. Argued October 12, 1999-Decided November 30,1999
Petitioner Fiore and his codefendant Scarpone were convicted of "operat[ing] a hazardous waste" facility without a "permit," Pa. Stat. Ann., Tit. 35, § 6018.401(a), because their operation deviated significantly from the terms of the permit they possessed. Fiore appealed his conviction to the Pennsylvania Superior Court, which affirmed; but Scarpone appealed his conviction to the Pennsylvania Commonwealth Court, which reversed. The Pennsylvania Supreme Court denied further review of Fiore's case, and his conviction became final. However, it subsequently affirmed the Commonwealth Court's decision in Scarpone's case, finding that § 6018.401(a) does not apply to those who possess a permit but deviate radically from the permit's terms. After the Pennsylvania courts refused to reconsider Fiore's identical conviction, he sought federal habeas relief, arguing, inter alia, that the Federal Constitution required that his conviction be set aside because his conduct was not criminal under § 6018.401(a). The District Court granted his petition, but the Third Circuit reversed, primarily because it believed that state courts have no obligation to apply their decisions retroactively.
Held: To help determine the proper state-law predicate for this Court's determination of the federal constitutional questions raised here, the Court certifies to the Pennsylvania Supreme Court the question whether the interpretation of § 6018.401(a) set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112, states the correct interpretation of Pennsylvania law at the date Fiore's conviction became final. Scarpone marked the first time that the Pennsylvania Supreme Court had interpreted the statute. Because that authoritative interpretation came only after Fiore's conviction became final, this Court must know whether the Scarpone construction stated the statute's correct understanding at the time Fiore's conviction became final, or whether it changed the interpretation then applicable. Judgment and further proceedings in this case are reserved pending receipt of the Pennsylvania Supreme Court's response. Pp. 28-30.
149 F.3d 221, question certified.
BREYER, J., delivered the opinion for a unanimous Court.
James Brandon Lieber argued the cause for petitioner.
With him on the briefs were M. Jean Clickner and Harold Gondelman.
Robert A. Graci, Assistant Executive Deputy Attorney General of Pennsylvania, argued the cause for respondents. With him on the brief were D. Michael Fisher, Attorney General, pro se, and Andrea F. McKenna, Senior Deputy Attorney General. *
JUSTICE BREYER delivered the opinion of the Court.
The Commonwealth of Pennsylvania convicted codefendants William Fiore and David Scarpone of violating a provision of Pennsylvania law forbidding any person to "operate a hazardous waste" facility without a "permit." Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993) (reprinted at Appendix A, infra). Each codefendant appealed to a different intermediate state court, one of which affirmed Fiore's conviction, the other of which reversed Scarpone's. The Pennsylvania Supreme Court denied further review of Fiore's case, and his conviction became final. However, that court agreed to review Scarpone's case, and it subsequently held that the statutory provision did not apply to those who, like Scarpone and Fiore, possessed a permit but deviated radi-
*Saul M. Pilchen, Peter Goldberger, and Lisa Bondareff Kemler filed a brief for the National Association of Criminal Defense Lawyers urging reversal.
A brief of amici curiae urging affirmance was filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, Michael B. Billingsley, Assistant Attorney General, Dan Schweitzer, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Mark L. Earley of Virginia, and Christine O. Gregoire of Washington.
"The alteration of the monitoring pipe was clearly a violation of the conditions of the permit. But to say that
the alteration resulted in the operation of a new facility which had not been permitted is to engage in a semantic exercise which we cannot accept .... [W]e will not let [the provision's] language be stretched to include activities which clearly fall in some other subsection." Ibid.The Pennsylvania Supreme Court affirmed the Common- wealth Court's conclusion. It wrote:
"[T]he Commonwealth did not make out the crime of operating a waste disposal facility without a permit .... Simply put, Mr. Scarpone did have a permit .... [T]o conclude that the alteration constituted the operation of a new facility without a permit is a bald fiction we cannot endorse .... The Commonwealth Court was right in reversing Mr. Scarpone's conviction of operating without a permit when the facility clearly had one." Commonwealth v. Scarpone, 535 Pa., at 279, 634 A. 2d, at 1112.4. Fiore again asked the Pennsylvania Supreme Court to review his case, once after that court agreed to review Scarpone's case and twice more after it decided Scarpone. See Appellee's Supplemental App. in No. 97-3288 (CA3), pp. 59, 61 (including docket sheets reflecting Fiore's filings on Jan. 30, 1992, Jan. 24, 1994, and Oct. 18, 1994). The court denied those requests. 5. Fiore then sought collateral relief in the state courts. The Court of Common Pleas of Allegheny County, Pa., refused to grant Fiore's petition for collateral relief-despite Scarpone-because "at the time of ... conviction and direct appeals, the interpretation of the law was otherwise," and "[t]he petitioner is not entitled to a retroactive application of the interpretation of the law set forth in Scarpone." Commonwealth v. Fiore, CC No. 8508740 (Aug. 18, 1994), p. 6. On appeal, the Superior Court affirmed, both because Fiore had previously litigated the claim and because Fiore's "direct appeal was no longer pending when the Supreme
Does the interpretation of Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993), set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993), state the correct interpretation of the law of Pennsylvania at the date Fiore's conviction became final?We respectfully request that the Pennsylvania Supreme Court accept our certification petition because, in our view, the answer to this question will help determine the proper state-law predicate for our determination of the federal constitutional questions raised in this case. We recommend that the Pennsylvania Supreme Court designate William Fiore (the petitioner here) as appellant and both Gregory White, Warden, and the Attorney General of the Commonwealth of Pennsylvania (the respondents here) as appellees.
"No person or municipality shall store, transport, treat, or dispose of hazardous waste within this Commonwealth unless such storage, transportation, treatment, or disposal is authorized by the rules and regulations of the department; no person or municipality shall own or operate a hazardous waste storage, treatment or disposal facility unless such person or municipality has first obtained a permit for the storage, treatment and disposal of hazardous waste from the department; and, no person or municipality shall transport hazardous waste within the Commonwealth unless such person or municipality has first obtained a license for the transportation of hazardous waste from the department." (Emphasis added.)Section 6018.606(f) establishes criminal penalties for a violation of § 6018.401 and provides:
"Any person who stores, transports, treats, or disposes of hazardous waste within the Commonwealth in violation of [§ 6018.401] ... shall be guilty of a felony of the second degree and, upon conviction, shall be sentenced to pay a fine of not less than $2,500 but not more than $100,000 per day for each violation or to imprisonment for not less than two years but not more than ten years, or both." (Footnote omitted.)
"a. The United States Supreme Court; or "b. Any United States Court of Appeals."3. A court may file a Certification Petition either on the motion of a party or sua sponte. "4. A Certification Petition shall contain the following:
"a. A brief statement of the nature and stage of the proceedings in the petitioning court;
"b. A brief statement of the material facts of the case; "c. A statement of the question or questions of Pennsylvania law to be determined;
"d. A statement of the particular reasons why this Court should accept certification; and
"e. A recommendation about which party should be designated Appellant and which Appellee in subsequent pleadings filed with this Court.
"f. The petitioning court shall attach to the Certification Petition copies of any papers filed by the parties regarding certification, e. g., a Motion for Certification, a Response thereto, a Stipulation of Facts, etc." Pa. Rules of Court, p. 745 (1999).
Comments
Be the first to comment
Leave a Comment