text:
Supreme Court of Canada holds judicial review more effective remedy than Charter damages.
“The Alberta Energy Regulator (the “Board”) is a statutory, independent, quasi‑judicial body responsible for regulating Alberta’s energy resource and utility sectors. E claims that the Board breached her right to freedom of expression under s. 2 (b) of the Canadian Charter of Rights and Freedoms by punishing her for publicly criticizing the Board and by preventing her, for a period of 16 months, from speaking to key offices within it. E brought a claim against the Board for damages as an “appropriate and just” remedy under s. 24(1) of the Charter for that alleged breach. The Board applied to strike this claim on the basis, among others, that it is protected by an immunity clause — i.e., s. 43 of the Energy Resources Conservation Act — which precludes all claims in relation to the Board’s actions purportedly done pursuant to the legislation which the Board administers. Both the Alberta Court of Queen’s Bench and the Court of Appeal found that the immunity clause on its face bars E’s claim for Charter damages and concluded therefore that it should be struck out. On appeal to this Court, E reformulated her claim to add a challenge to the constitutional validity of s. 43."
The S.C.C. held (with one judge writing majority reasons, with which one other judge wrote separate reasons concurring in the result, and three other judges writing joint dissenting reasons which whom one judge concurred), that the appeal is dismissed.
"Ms. Ernst’s position, in both her factum and oral argument, is that this immunity provision is unconstitutional because it purports to bar her claim for Charter damages. She submits that the only issue on this appeal is whether the immunity clause is constitutionally inapplicable or inoperable to the extent that it bars a claim against the Board for Charter damages. She accepts, as the Alberta courts found, that the immunity clause on its face bars her claim; the issue she brings to the Court is whether this immunity clause is unconstitutional to the extent that it does so.
That the provision purports to bar her damages claim is the foundation on which her appeal was argued. It follows that the Court must give effect to the immunity clause and strike Ms. Ernst’s claim unless she successfully challenges the clause’s constitutionality. In my view, she has not done so.
Like the Alberta courts in this case, although for somewhat different reasons, I conclude that the claim for Charter damages should be struck out.
If Charter damages could never be an appropriate and just remedy for Charter breaches by the Board, then s. 43 does not limit the availability of such a remedy under the Charter and the provision cannot be unconstitutional. In my view, Charter damages could not be an appropriate remedy.
Underlying the question of whether Charter damages could be an appropriate remedy is a broader issue. It concerns how to strike an appropriate balance so as to best protect two important pillars of our democracy: constitutional rights and effective government; see, e.g., Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13,  1 S.C.R. 405, at para. 79. Granting Charter damages may vindicate Charter rights, provide compensation and deter future violations. But awarding damages may also inhibit effective government, and remedies other than damages may provide substantial redress for the claimant without having that sort of broader adverse impact. Thus there is a need for balance with respect to the choice of remedies. This concern for balance was emphasized recently in Henry v. British Columbia (Attorney General) in words that are especially apt in this case: “Courts should endeavour, as much as possible, to rectify Charter breaches with appropriate and just remedies. Nevertheless, when it comes to awarding Charter damages, courts must be careful not to extend their availability too far” (2015 SCC 24,  2 S.C.R. 214, at para. 91).
The leading case about when Charter damages are an appropriate and just remedy is Vancouver (City) v. Ward, 2010 SCC 27,  2 S.C.R. 28. Applying the principles set out in that case, damages are not an appropriate and just remedy for Charter violations by this Board. Not every bare allegation claiming Charter damages must proceed to an individualized, case-by-case consideration on its particular merits. Ward held that Charter damages will not be an appropriate and just remedy where there is an effective alternative remedy or where damages would be contrary to the demands of good governance. These considerations, taken together, support the conclusion that the proper balance would be struck by holding that damages are not an appropriate remedy.
Section 24(1) of the Charter confers on the courts a broad remedial authority. As has been said, “[i]t is difficult to imagine . . . a wider and less fettered discretion”: Mills v. The Queen,  1 S.C.R. 863, at p. 965. This broad discretion should not be narrowed by “casting it in a straight-jacket of judicially prescribed conditions”: Ward, at para. 18. But this does not mean that Charter breaches should always, or even routinely, be remedied by awards of Charter damages. The remedy of damages is limited to situations in which it is “appropriate and just” because it serves one or more of the compensatory, vindicatory and deterrent purposes which support that choice of remedy: Ward, at para. 32. Countervailing factors may establish that damages are not an appropriate and just remedy even though they would serve these ends: Ward, at para. 33.
The list of countervailing factors is not closed. So far, two have been identified: the existence of alternative remedies and concerns for good governance: (Ward, at para. 33; see also para. 42). I conclude, therefore, that Ward does not preclude the immunity of the Board to Charter damages. Rather, Ward set out two countervailing factors that could negate the appropriateness of Charter damages and specifically left open the development of others.
The jurisprudence does not require that every pleaded claim for Charter damages be assessed on an individualized, case-by-case basis. Ward, for example, specifically contemplates the development of new defences to Charter damages claims and these defences are not limited to enhanced liability thresholds. Countervailing factors against granting Charter damages may be of a more generalized nature, reflecting the availability of other remedies, the accumulated wisdom of the common law and strong indications of public policy.
First, there is an alternative remedy — judicial review — that substantially addresses the alleged Charter breach. Judicial review is available to vindicate Charter rights and to clarify the law so as to prevent similar future breaches. Second, good governance concerns are also engaged as granting damages undermines the effectiveness of the Board and inhibits effective governance. Third, to determine the appropriateness of Charter damages against this type of board on a case-by-case basis in a highly factual and contextual manner largely undermines the purposes served by an immunity.
When these countervailing factors are considered collectively — that is, when one looks at their cumulative effect — they negate the appropriateness of an otherwise functionally justified award of Charter damages against this Board. In short, damages are not an appropriate and just remedy for the Board’s Charter breaches.
The first countervailing factor discussed in Ward was the availability of alternative remedies: para. 33. Once the claimant establishes that damages would further one or more of the objectives of compensation, vindication and deterrence, it is open to the state to show that other remedies are available that will sufficiently address the breach: para. 35. As stated in Henry, where another remedy is available to effectively address a Charter breach, damages may be precluded by virtue of this countervailing factor: para. 38. In my view, the availability of judicial review to address alleged Charter breaches by the Board is a strong countervailing factor.
I have no doubt, as my colleague Justice Abella notes, that judicial review is available to address the Board’s alleged Charter breaches. Both the Alberta Court of Queen’s Bench and the Court of Appeal so found. Ms. Ernst does not deny this in her factum and the brief oral submissions suggesting that judicial review ... the statutory immunity clause cannot bar access to judicial review: Crevier v. Quebec (Attorney General),  2 S.C.R. 220.
The availability of judicial review is important for two reasons.
First, judicial review can provide substantial and effective relief against alleged Charter breaches by a quasi-judicial and regulatory board like this one. The facts of this case strikingly illustrate the utility of the remedy of judicial review. The basis of Ms. Ernst’s complaint is that the Board abused its discretion and breached the Charter by refusing to deal with her. If that claim were established in the context of judicial review, a superior court could set aside the directive which Ms. Ernst alleges was issued to stop interaction with her and could order corrective action. Such orders would go a long way towards vindicating Ms. Ernst’s Charter rights.
Moreover, judicial review would in all likelihood provide vindication in a much more timely manner than an action for damages. Again, the facts of this case provide a good example of how this could be so. Ms. Ernst did not start her action for damages until some two years after the alleged breach, and several months after the Board had rescinded the directive which she challenged. A prompt application for judicial review had the potential to achieve practical relief much sooner. While an application for judicial review would not have led to an award of damages, it might well have addressed the breach much sooner and thereby significantly reduced the extent of its impact as well as vindicated Ms. Ernst’s Charter right to freedom of expression. Finally, judicial review would have provided a convenient process to clarify what the Charter required of the Board. That sort of clarification plays an important role in preventing similar future rights infringements.
Thus, judicial review of the Board’s decisions and directives has the potential to provide prompt vindication of Charter rights, to provide effective relief in relation to the Board’s conduct in the future, to reduce the extent of any damage flowing from the breach, and to provide legal clarity to help prevent any future breach of a similar nature. While the remedies available under judicial review do not include Charter damages, Ward directs us to consider the existence of alternative remedies, not identical ones: para. 33.
The availability of judicial review is important for a second reason: it distinguishes this case from others in which the Court has crafted an elevated liability threshold in preference to a complete immunity. For example, the rationale for denying absolute immunity to prosecutors in Nelles v. Ontario,  2 S.C.R. 170, does not apply to claims against quasi-judicial regulatory boards. Lamer J. (as he then was) in Nelles found that none of the alternative remedies to a civil suit for malicious prosecution adequately redressed that wrong: p. 198. However, unlike in Nelles, a claimant who alleges the decision or action of a quasi-judicial regulatory body has infringed his or her Charter rights or freedoms is not without a remedy, given the availability of judicial review. Similarly, in Henry, which established an elevated liability threshold for Charter damages for failure of the prosecutor’s duty to disclose, the majority of the Court noted that such conduct is, for practical purposes, largely untouchable by way of judicial review: para. 49. In contrast to the claims arising out of alleged misconduct by prosecutors as in Nelles and Henry, there is a wide range of remedies available through judicial review for Charter breaches by quasi-judicial and regulatory boards such as this one. The availability and utility of the remedy of judicial review in this context supports a different remedial balance than was struck in Nelles and Henry.
The rationales underlying the common law and statutory immunity for quasi-judicial and regulatory decision-makers fall into two main interrelated categories. First, immunity from civil claims permits decision-makers to fairly and effectively make decisions by ensuring freedom from interference, which is necessary for their independence and impartiality: Morier, at pp. 737-38, citing Garnett v. Ferrand(1827), 6 B. & C. 611, 108 E.R. 576, at pp. 581-82, and Fray v. Blackburn (1863), 3 B. & S. 576, 122 E.R. 217. Second, immunity protects the capacity of these decision-making institutions to fulfill their functions without the distraction of time-consuming litigation.
These grounds for immunity resonate in the context of claims for Charter damages.
If actions for Charter damages were brought against the Board, it would inevitably be involved in defending those suits and thereby distracted from its statutory responsibilities. As Hogg, Monahan and Wright observe in relation to judicial immunity, the public relies on judges and the courts to resolve difficult problems, and “a judge would be placed in an intolerably vulnerable position, and there would be no end to litigation, if a disappointed litigant could turn around and bring fresh proceedings against the judge”: p. 283. The same may be said of quasi-judicial decision-makers: Ontario Law Reform Commission, Report on the Liability of the Crown (1989), at p. 29.
To conclude on this point, the policy reasons that underlie the common law and statutory immunities for regulatory and quasi-judicial boards like this one relate directly to the types of good governance concerns identified in Ward. Opening the Board to damages claims will distract it from its statutory duties, potentially have a chilling effect on its decision making, compromise its impartiality, and open up new and undesirable modes of collateral attack on its decisions.
Ms. Ernst argues that claims for Charter damages must be assessed on a case-by-case basis to determine whether damages would be an appropriate and just remedy. However, as has been pointed out many times, requiring a case-by-case examination of particular claims largely undermines the purpose of conferring immunity in the first place: Gonzalez, at para. 49.
Immunity is easily frustrated where the mere pleading of an allegation of bad faith or punitive conduct in a statement of claim can call into question a decision-maker’s conduct: Gonzalez, at para. 53. Even qualified immunity undermines the decision-maker’s ability to act impartially and independently, as the mere threat of litigation, achieved by artful pleadings, will require the decision-maker to engage with claims brought against him or her. As Lord Denning M.R. held, to be truly free in thought, judges should not be “plagued with allegations of malice or ill-will or bias or anything of the kind”: Sirros, at p. 136, cited by Morier, at pp. 739-40."

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D.C. Law Library - § 47–1278. Federal determinations; suspension and termination of assessment.
↪ § 47–1278. Federal determinations; suspension and termination of assessment.
Chapter 13. Real Property Tax Sales.
§ 47–1278. Federal determinations; suspension and termination of assessment.
(a) If the federal government determines that an assessment imposed on an ICF-IDD pursuant to this chapter does not satisfy the requirements for federal financial participation set forth in section 1903(w) of the Social Security Act, approved July 30, 1965 (70 Stat. 349; 42 U.S.C. § 1396b(w)), monies collected pursuant to the assessment shall be refunded and the assessment shall be null and void.
(b)(1) An [sic] determination adverse to the District under subsection (a) of this section with respect to an assessment imposed on one or more, but not all ICF-IDDs pursuant to this chapter shall not affect the validity, amount, applicable rate, or any other terms of an assessment on other facilities imposed by this chapter.
(2) An adverse determination with respect to all assessments imposed by this chapter shall be governed by subsection (a) of this section.
(c) Notwithstanding any other provision of this chapter, if the federal government determines that any exclusions from ICF-IDDs specified under this chapter would prevent an assessment imposed by this chapter from qualifying as a broad-based health care related tax, as that term is defined in section 1903(w)(3)(B) of the Social Security Act, approved July 30, 1965 (79 Stat. 349; 42 U.S.C. § 1396b(w)(3)(B)), the exclusions shall not be made.
(d) The assessment imposed under § 47-1273 shall not be due at the time required by this chapter, or by rules issued pursuant to § 47-1277, if the Department of Health suspends or postpones regular Medicaid payment to ICF-IDDs beyond the regular monthly payment cycle, but shall be due when the regular monthly payment cycle resumes.
(2) Following fiscal year 2006, general funding levels for Medicaid rates for ICF-IDDs fall below the fiscal year 2006 level of funding, on a per-Medicaid-resident, per-day basis.
This section is referenced in § 47-1273.
The 2012 amendment by D.C. Law 19-169 substituted “ICF-IDD” for “ICF-MR” in (a); and substituted “ICF-IDDs” for “ICF-MRs” wherever it appears in the section.
Building safety, threatening conditions, special assessments on real property owners, see § 42-3131.01.
Litter control, fines and penalties, liens on real property, see § 8-807.
Property exempt from taxation, federally funded housing programs, payments imposed on limited dividend, limited profit, and profit owners, see § 47-1002.
Real property assessments and taxes, delinquencies, tax sales, see §§ 47-847 and 47-848.
Special assessments, delinquencies, see §§ 47-1203 and 47-1204.
Special assessments, nuisance abatement, delinquencies, see § 47-1205.
Water and sanitary sewer services, liens imposed on delinquent real property owners, see § 34-2407.02.


§204. Section 252. Enforcing Pay-As-You-Go.
(a) Purpose.—The purpose of this section is to assure that any legislation enacted before October 1, 2002, affecting direct spending or receipts that increases the deficit will trigger an offsetting sequestration.
(1) Timing.—Not later than 15 calendar days after the date Congress adjourns to end a session and on the same day as a sequestration (if any) under section 251 or 253, there shall be a sequestration to offset the amount of any net deficit increase caused by all direct spending and receipts legislation enacted before October 1, 2002, as calculated under paragraph (2).
(A) Firsts.—All reductions in automatic spending increases specified in section 256(a) shall be made.
(B) Second.—If additional reductions in direct spending accounts are required to be made, the maximum reductions permissible under sections 256(b) (guaranteed and direct student loans) and 256(c) (foster care and adoption assistance) shall be made.
(C) Third.—(i) If additional reductions in direct spending accounts are required to be made, each remaining nonexempt direct spending account shall be reduced by the uniform percentage necessary to make the reductions in direct spending required by paragraph (1); except that the medicare programs specified in section 256(d) shall not be reduced by more than 4 percent and the uniform percentage applicable to all other direct spending programs under this paragraph shall be increased (if necessary) to a level sufficient to achieve the required reduction in direct spending.
(ii) For purposes of determining reductions under clause (i), outlay reductions (as a result of sequestration of Commodity Credit Corporation commodity price support contracts in the fiscal year of a sequestration) that would occur in the following fiscal year shall be credited as outlay reductions in the fiscal year of the sequestration.
(2) For purposes of this subsection, accounts shall be assumed to be at the level in the baseline.
(1) CBO Estimates.—As soon as practicable after Congress completes action on any direct spending or receipts legislation, CBO shall provide an estimate to OMB of that legislation.
(C) an explanation of any difference between the 2 estimates.
(3) Significant differences.—If during the preparation of the report under paragraph (2) OMB determines that there is a significant difference between the OMB and CBO estimates, OMB shall consult with the Committees on the Budget of the House of Representatives and the Senate regarding that difference and that consultation, to the extent practicable, shall include written communication to such committees that affords such committees the opportunity to comment before the issuance of that report.
(B) emergency provisions as designated under subsection (e).
(B) in conformance with such guidelines, prepare estimates under this section.
(e) Emergency Legislation.—If a provision of direct spending or receipts legislation is enacted that the President designates as an emergency requirement and that the Congress so designates in statute, the amounts of new budget authority, outlays, and receipts in all fiscal years resulting from that provision shall be designated as an emergency requirement in the reports required under subsection (d). This subsection shall not apply to direct spending provisions to cover agricultural crop disaster assistance.
 Section 256(a) (BBEDCA) was repealed by section 10(a) of the Statutory Pay-As-You-Go Act of 2010 (Pub. L. 111-139).
 Section 256(c) (BBEDCA) was repealed by section 10(c) of the Statutory Pay-As-You-Go Act of 2010 (Pub. L. 111-139).
This section is classified to the U.S. Code at 2 U.S.C. 902.
(d) Scorekeeping Guidlines.—Estimates under this section shall be provided in accordance with the scorekeeping guidelines determined under section 252(d)(5) of the Balanced Budget and Emergency Deficit Control Act of 1985.
Pub. L. 99–177, title II, §252, Dec. 12, 1985, 99 Stat. 1072 (Balanced Budget and Emergency Deficit Control Act of 1985).
Pub. L. 100–119, title I, §102(a), Sept. 29, 1987, 101 Stat. 764 (Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987).
Pub. L. 100–203, title VIII, §8003(e), Dec. 22, 1987, 101 Stat. 1330–282 (Omnibus Budget Reconciliation Act of 1987).
Pub. L. 101–508, title XIII, §13101(a), Nov. 5, 1990, 104 Stat. 1388–581 (Budget Enforcement Act of 1990).
Pub. L. 103–66, title XIV, §14003(a), Aug. 10, 1993, 107 Stat. 684 (Omnibus Budget Reconciliation Act of 1993).
Pub. L. 103–354, title I, §119(d)(2), Oct. 13, 1994, 108 Stat. 3208 (Federal Crop Insurance Reform and Department of Agriculture Reauthorization Act of 1994).
Pub. L. 105–33, title X, §10205, Aug. 5, 1997, 111 Stat. 702 (Budget Enforcement Act of 1997).
Pub. L. 113–67, div. A, title I, §121(1), (2), Dec. 26, 2013, 127 Stat. 1174 , 1175 (Bipartisan Budget Act of 2013).
Section 256(a) (2 U.S.C. 906(a)) referred to in subsection (c)(1)(A), was repealed by theStatutory Pay-As-You-Go Act of 2010 (Pub. L. 111–139, title I, §10(a), Feb. 12, 2010, 124 Stat. 21).
Section 256(c) (2 U.S.C. 906(c)) referred to in subsection (c)(1)(B), was repealed by the Statutory Pay-As-You-Go Act of 2010 (Pub. L. 111–139, title I, §10(c), Feb. 12, 2010, 124 Stat. 22).
The Bipartisan Budget Act f 2013 (Pub. L. 113–67, §121(1)) substituted “applicable to the budget year” for “applicable to budget year”.
The Bipartisan Budget Act f 2013 (Pub. L. 113–67, §121(2), substituted “subsection (b)” for “paragraph (1)”.
The Budget Enforcement Act of 1997 (Pub. L. 105–33, §10205(1)) added subsection (b) and struck out heading and text of former subsection (b) which required sequestrations at the end of a session of Congress to offset amount of any net deficit increase in that fiscal year and prior fiscal year caused by all direct spending and receipts legislation enacted after Nov. 5, 1990.
The Budget Enforcement Act of 1997 (Pub. L. 105–33, §10205(2)) inserted “and direct” after “guaranteed”.
The Budget Enforcement Act of 1997 (Pub. L. 105–33, §10205(4)), struck out “, for any fiscal year from 1991 through 1998,” after “If” and “through 1995” after “receipts in all fiscal years”.
Pub. L. 103–66, §14003(a)(1) (OBRA 1993), which directed the substitution of “Fiscal year 1992–1998 enforcement” for “Fiscal year 1992–1995 enforcement” in heading, was executed by substituting “Fiscal years 1992–1998 enforcement” for “Fiscal years 1992–1995 enforcement”, to reflect the probable intent of Congress.
Pub. L. 103–66, §14003(a)(2) (OBRA 1993), substituted “through fiscal year 1998” for “through fiscal year 1995” in two places.
Pub. L. 103–66, §14003(a)(3) (OBRA 1993), substituted “for any fiscal year from 1991 through 1998” for “for fiscal year 1991, 1992, 1993, 1994, or 1995”.
Pub. L. 101–508 (BEA 1990 ) amended this section generally, substituting subsections (a) to (e) relating to enforcement of pay-as-you-go for former subsections (a) to (g) relating to the Presidential order.
The Balanced Budget and Emergency Deficit Reaffirmation Control Act of 1987 (Pub. L. 100–119 ) amended section generally to reflect substitution of Director of OMB for Comptroller General as official submitting reports under section 901 of this title and to revise provisions relating to content of Presidential orders issued in accordance with those reports.
Pub. L. 100–203, §8003(e), substituted “proposed” for “made”.
Pub. L. 103–354, title I, §119(d)(2), October 13, 1994, 108 Stat. 3208 (Crop Insurance Act of 1994) provided that the amendment made by that section is effective January 1, 1995.
Sections 252(d)(1), 254(c), 254(f)(3), and 254(i) of the Balanced Budget and Emergency Deficit Control Act of 1985 shall not apply to the Congressional Budget Office.
Section 1. Reduction of Preexisting Paygo Balances.
Upon enactment of this Act, the Director of the Office of Management and Budget shall reduce any balances of direct spending and receipts legislation for all fiscal years under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985 to zero.
Sec. 102. Pay-As-You-Go Adjustment.—In preparing the final sequestration report for fiscal year 2002 required by section 254(f)(3) of the Balanced Budget and Emergency Deficit Control Act of 1985 [2 U.S.C. 904(f)(3)], the Director of the Office of Management and Budget shall change any balance of direct spending and receipts legislation for fiscal years 2001 and 2002 under section 252 of that Act [2 U.S.C. 902] to zero.
Sec. 8102. Conforming the Paygo Scorecard with This Act.
sec. 10213. reduction of preexisting balances and exclusion of effects of this act from paygo scorecard.
“(2) not make any estimates of changes in direct spending outlays and receipts under subsection (d) of that section for any fiscal year resulting from the enactment of this Act [see Tables for classification] or of the Taxpayer Relief Act of 1997.
(c) Upon enactment of this Act, the director of the Office of Management and Budget shall reduce the balances of direct spending and receipts legislation applicable to each fiscal year under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985 by an amount equal to the net deficit reduction achieved through the enactment in this Act of direct spending and receipts legislation for that year.
 The full short title of the BEA 1997 is as follows: “Budget Enforcement Act of 1997”. This is the short title of Title X of the “Balanced Budget Act of 1997”.
 The full short title of this Act is as follows: “Federal Crop Insurance Reform and Department of Agriculture Reauthorization Act of 1994”.
 The full short title of this Act is as follows: “Omnibus Budget Reconciliation Act of 1993”.
 The full short title of the BEA 1990 is as follows: “Budget Enforcement Act of 1990”. This is the short title of Title XIII of the “Omnibus Budget Reconciliation Act of 1990”.
 The full short title of this Act is as follows: “Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987”.
 The full short title of the BCA 2011 is as follows: “Budget Control Act of 2011”.
 2 U.S.C. 902(d)(1), 904(c), (f)(3), (i).
 This Act, which has no short title, was enacted on December 2, 2002. It’s long title is An Act to reduce preexisting PAYGO balances, and for other purpose (Pub. L. 107-312).
 See Tables for classification or from 2 U.S.C. 1102 of this Act [former 23 U.S.C. 104 note].
 Pub. L. 105–34, H.R. 2014, 111 Stat. 788 was enacted on August 5, 1997.
 OBRA 1993 was enacted on August 10, 1993.


RICHARD CRUICKSHANK, Warden of Nebraska Penitentiary, and SCOTT R. FRAKES, Director of Nebraska Department of Correctional Services, Defendants.
This matter is before the Court on the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, ECF No. 1, filed by Ricky Sanders. For the reasons stated below, the Petition will be denied.
On November 16, 2011, in the District Court for Douglas County, Nebraska, Sanders was convicted of discharging a firearm, in violation of Neb. Rev. Stat. § 28-1212.04,  and using a firearm to commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a)(c). According to the evidence at trial, a passenger in a vehicle driven by Sanders fired gunshots at a house in Omaha, Nebraska, and the court instructed the jury that Sanders could be found guilty on a theory of aiding and abetting. The Douglas County District Court sentenced Sanders to not less than ten years' nor more than fifteen years' incarceration on both counts, to be served consecutively. Transcript, ECF No. 24, Page ID 867.
On January 20, 2012, Sanders directly appealed his conviction to the Nebraska Court of Appeals arguing there was insufficient evidence to support his convictions and that the district court imposed an excessive sentence. The Douglas County Public Defender's Office represented Sanders at trial and, on appeal, Sanders asked the court to appoint substitute counsel because he was unhappy with counsel's performance. The Court of Appeals denied the motion to appoint substitute counsel and summarily affirmed Sanders's conviction and sentence. Sanders did not seek further review of this decision by the Nebraska Supreme Court.
After his direct appeal, Sanders filed a pro se motion for postconviction relief under the Nebraska Postconviction Relief Act, Neb. Rev. Stat. § 29-3001 et seq., with the Douglas County District Court. The motion asserted a claim for ineffective assistance of counsel based on counsel's failure to challenge the constitutionality-state and federal- of Neb. Rev. Stat. § 28-1212.04, and counsel's failure to move to suppress evidence obtained from a warrantless search of the vehicle. The district court denied Sanders's motion, and he appealed the denial directly to the Nebraska Supreme Court. The Nebraska Supreme affirmed the denial “because counsel could not be found to be deficient [under Strickland v. Washington for failing to raise a novel constitutional challenge[, ]” and because the record “show[ed] that the search was made incident to Sanders' arrest and was based on a reasonable belief that the vehicle contained evidence of the offense for which [he] was arrested.” State v. Sanders, 855 N.W.2d 350, 356, 359 (Neb. 2014). The Court also found that the stop of Sanders's vehicle was constitutional because it was prompted by a traffic violation. Id. at 357-58.
Sanders then filed a petition for habeas corpus under Neb. Rev. Stat. § 29-2801 et seq, in the District Court for Lancaster County, Nebraska, arguing his judgment of conviction was void because Neb. Rev. Stat. § 28-1212.04, on its face, violates the Nebraska Constitution and the United States Constitution. The district court denied the petition because, under Nebraska law, Sanders's conviction was a final judgment that could not be collaterally attacked with a petition for habeas corpus. The Nebraska Supreme Court affirmed the denial. Sanders v. Frakes, 888 N.W.2d 514 (Neb. 2016) (“Section 29-2801 explicitly excludes from its scope ‘persons convicted of some crime or offense for which they stand committed.'”). Thus, neither the district court nor the Nebraska Supreme Court reached the question of the constitutionality of the statute.
On February 15, 2017, Sanders filed his Petition, ECF No. 1, for habeas corpus under 28 U.S.C. § 2254 with this Court. After an initial review, Judge Richard Kopf found that Sanders's petition included two potentially cognizable claims: (1) ineffective assistance of counsel and (2) the statute of conviction, Neb. Rev. Stat. § 28-1212.04, is facially unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. ECF No. 4; ECF No. 18 (amending, in part, ECF No. 4). Defendants Richard Cruickshank and Scott Frakes (Defendants) filed an Answer, ECF No. 24, to the Petition with an accompanying brief, ECF No. 25; Sanders filed a response brief, ECF No. 35; and Defendants filed a reply brief, ECF No. 38. Accordingly, the Petition is ripe for review.
The burden is on the petitioner to prove that a state court's application of federal law was objectively unreasonable. Woodford v. Visciotti, 537 U.S. 19, 25 (2002). “A state court decision is ‘contrary to' clearly established federal law if it either ‘arrives at a conclusion opposite that reached by [the Supreme] Court on a question of law' or ‘decides a case differently than th[e] [Supreme] Court has on a set of materially indistinguishable facts.'” Worthington, 631 F.3d at 495 (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). It is not enough that a federal court “would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006). A federal court must presume that a factual determination made by the state court is correct, unless the petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254 (e)(1).


It is a familiar story. A client comes into a lawyer's office complaining that his neighbor has just hacked his trees without his permission and he wants legal representation. Although the lawyer has never handled a "tree case", she has practiced civil litigation for years and feels confident in her abilities to fight the good fight. She may even have significant experience in real estate litigation. She says to herself, "How hard could it be?" After a year, tens of thousand of dollars in legal fees, and a very disappointed client, the lawyer tells herself that she won't ever handle another tree case.
What went wrong? Why are tree cases so thorny? What can lawyers do to help our clients obtain quicker more cost effective results? In California, where trees are aplenty, homes are close to each other, and homeowners often have a disproportionate sense of entitlement,the number and variety of tree disputes are enormous. Whether the issue is one of trees blocking views, roots lifting driveways, hazard trees causing property damage and/or personal injury, trees dropping debris, or acts of vandalism against trees, it is important not to underestimate the complexities of the dispute when initially deciding whether to take the case and how to get the best result.
1. Get to the root of the problem. Tree problems usually fall under the heading of neighbor disputes, which tend to be rancourous and even downright nasty. It is not unusual, therefore, for the client walking through your door to be angry and distraught. For many anxious clients, this will be their first foray into the legal world.
After listening to the client's story, it may be tempting to launch into giving advice and concocting solutions to their "problem." After all, that is what lawyers do best. Slow down and beware. It is important first to find out what the client wants to achieve. This may be the first time they actually stop to think about it. Because our judicial system is limited in the kind of remedies it can provide, it is important to know whether the client's objectives are reasonable. Beware of clients who says they want retribution, retaliation, or even respect. If, after exploration, the client's expectations do not match your repertoire of remedies, declining representation will be the best thing for both of you.
2. Consult an expert on damages and liability. Ordinarily in civil cases, we do not think of retaining expert witnesses until well into the case. With certain kinds of tree cases, however, it may be appropriate to retain a qualified consulting arborist before even deciding whether to take the case. For example, in the case of a neighbor who cut your client's trees without permission, liability may be clear --but what are the damages? You may think the trees do not have much value, but it turns out that more than $50,000 worth of damage was done. Conversely, you may assume that a particular tree has great value, but it turns out that, because of its species, condition or location, it barely qualifies for small claims court. Whatever the tree's value, keep in mind that "[c]ourts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered." Hassoldt v Patrick Media Group, Inc. (2000) 84 (CA4th 153, 168, citing Henniger v Dunn (1980) 101 CA3d 858, 865.
In other types of disputes, the damages may be clear but liability may be a question. For example, in a case concerning a hazardous tree smashing a house or car, did the tree fall because of something the tree owner knew or should have known about the tree? Knowing the answers to these questions in advance will help you decide whether to take the case and how best to proceed.
Do not confuse a certified arborist with a consulting arborist. Anyone who passes the test administered by the International Society of Arboriculture, the trade organization for the arboricultural industry, may become a certified arborist. While there are many certified arborists who may be qualified to serve as consultants, there are many more whose only qualification is that they have a pick-up truck and a chain saw. A consulting arborist with forensic training, regardless of "certification," is the appropriate expert to look at questions of causation and valuation. To find a qualified consulting arborist in your area, contact the American Society of Consulting Arborists in Rockville, Maryland at 301/947-0483 - (e-mail:asca@mgmtsol.com) or check their online referral database at www.ascaconsultants.org. You could also consult a local attorney specializing in tree disputes for recommendations.
3. Know your statutes and ordinances. State statutes regarding trees span six codes. Here are just a few examples: Civil Code § 3346 and Code of Civil Procedure § 733 provide mandatory doubling (with certain exceptions) and discretionary trebling of damages for wrongful injury to trees and vegetation. They also provide a five-year statute of limitations. Penal Code sections 384a and 622 make it a crime to harm or remove trees or plants on land not your own, which is punishable by a fine of up to $1,000 and imprisonment in jail up to six months.
In addition, most municipalities have tree ordinances. Many communities have "heritage tree" ordinances that govern the type of trees that can be cut or removed, even by the property owner. Protected trees are often defined by size, age or species. There is little uniformity in these ordinances, and one community's heritage tree can be another community's undesirable species. For example,the city of Mill Valley, known for its majestic redwoods, protects redwood trees of a certain size, while the city of Sausalito, known for its majestic views, lists redwoods as an undesirable tree because it is a fast- and tall-growing species. The city of Novato defines a heritage tree as anything larger than 24 inches in diameter (75 inches in circumference) regardless of species.
Although there is no common law right to a view in California (see Wolford v Thomas (1987) 190 CA3d 347, 358-359), some properties are subject to a view easement. Many towns have adopted view ordinances, and courts have agreed that advancing aesthetic values is a legitimate exercise of police powers. But do not look for uniformity in these ordinances either. Each one has its own requirements regarding how the ordinance is applied, what views are protected, the factors to be balanced, and the alternative dispute resolution requirements, if any, to be pursued. If drafted correctly, such ordinances pass constitutional muster. See for example, Kucera v. Lizza (1997) 59 CA4th 1141 (Tiburon view ordinance supports valid police power goal of preserving views and sunlight); Echevarrieta v. City of Rancho Palos Verdes (2001) 86 CA4th 472 (ordering appellant to trim trees for neighbor's view did not violate takings clause).
4. Who owns the trees? This seems like an obvious question. And it is certainly a critical piece of information. However, asking your client this question is just the beginning of the inquiry. Often the client's answer will be based on an incorrect understanding of the legalities of ownership or an incorrect understanding of the property lines. Civil Code section 833 provides that a tree whose trunk stands wholly on the land owned belongs exclusively to that owner. So you must determine where in relation to the property line the trunk meets the ground, regardless of where the roots or branches grow. Civil Code section 834 provides that trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common. This gives rise to joint rights and responsibilities.
5. Don't shoot first and ask questions later. One of the first questions I ask my clients is whether they have spoken to the other side about their concerns. I am always surprised by the number of times the answer is no. Because your client will continue to live next door to these neighbors for some period of time (maybe even the rest of their lives), it is important to find ways of preserving that relationship. Although sending the "lawyer letter" may make the client feel good in the short term, it can do irreparable damage. Encourage the client to personally contact the neighbor to talk about the problem. It may turn out that the neighbor was unaware of the problem and may be quite willing to accommodate your client in some way that is satisfactory to both sides. You can help set up the client for success by role-playing this conversation with your client.
7. Insurance considerations. Insurance may play a role in resolving tree disputes. If your client's property is damaged by a neighbor's tree, your client's homeowner's policy should cover the damage to the house, other structures, vehicles, trees, plants, pavement, walkways, drives, furniture and personal belongings. The tree owner's policy may also provide coverage under the liability portion of the policy. Carriers will try to avoid damage claims caused by falling trees by claiming they do not cover "acts of God." However, this defense is extremely difficult to establish. It requires an event so unusual in its proportions that it could not be anticipated. See Mattos v Mattos (1958) 162 CA2d 41 (windstorm was not of sufficient intensity to be "act of God"). And even in such an event, the defendant will not be relieved of liability if his or her own negligence contributed to the damage.
Where trees have been cut or vandalized, a tree owner's insurance usually covers damage to the trees up to a certain dollar amount. Many policies pay up to $500 a tree or 5 percent of the total property value. The tree cutter's insurance may also provide coverage unless the carrier determines that the cutter acted "intentionally".
8. Discourage self-help. A common assumption is that people have an absolute right to cut offending branches or roots that encroach on their properties. This assumption should have been dispelled in 1994 when an appellate court held that there is no absolute right to sever encroaching roots; rather, the test is one of reasonableness. Booska v. Patel, 24 CA4th 1786. Thus a landowner's right to remove the portions of a tree that encroach on his or her land must be balanced against the obligations to act reasonably toward adjoining landowners and to refrain from causing foreseeable injury to neighboring property. California Civil Practice, Real Property Litigation § 11:42 (West, 2001). A landowner is responsible "for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury on himself." CC § 1714. See also CC § 3514 (general obligations to others).
The landmark case of Husovsky v. U. S. (DDC 1978) 590 F2d 944, involved a motorist who was badly hurt when a tree limb, weighing nearly ten tons, fell onto his car. The tree was located on embassy land in Washington, D.C., owned by the government of India, and subject to an agreement that amounted to an easement for the benefit of the United States. The land was controlled and maintained by the federal government and was indistinguishable from the contiguous national park. The road through the park was jointly maintained by the District of Columbia and the National Park Service. The court found that the United States, whose duty it was to maintain and service the park, owed a duty of reasonable care to avert hazards that could be dangerous to passing motorists.
California has been making its own forays into this expansion. In 1997, the State Supreme Court affirmed the possibility of a duty owed by a landlord to a tenant who was injured on land not owned by the landlord by stepping in a broken or uncovered utility meter box that was located in a narrow strip of city-owned lawn in front of the landlord's property. The landlord had sometimes mown the lawn prior to the incident, and he had built a fence around the entire lawn, including the city-owned portion, after the incident. The landlord argued that no duty was owed since he did not own the strip of land, nor did he exercise any control over the meter box. Although the trial court agreed, the Supreme Court found in a 4-to-3 decision that the evidence of mowing and fence-building presented a triable issue of fact regarding whether this type of maintenance could constitute sufficient control to give rise to a duty. Alcaraz v. Vece (1997) 14 C4th 1149. The court noted, "[t]he proper test to be applied to the liability of the possessor of land....is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. This duty to maintain land in one's possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control." 14 C4th at 1156.
10. Promote the Golden Rule. Clients sometimes need to be reminded to treat their neighbor as they would like to be treated. While there are cases that find resolution only before a judge or jury, in general it is in your client's best interest to avoid escalating neighbor disputes into litigation. Explain to your clients that court victories can be largely Pyrrhic, won at excessive monetary, emotional, and social cost. The lawyer who can solve problems through creative alternatives to litigation performs a service not only for the client but also for the community at large.
Barri Kaplan Bonapart is a Marin County-based attorney, consultant, judge pro tem, and third party neutral specializing in tree and neighbor law (www.treelaw.com).


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Wanzhen, Gao. Overview of Progress in the Study of Wheel-Rail System in China using Tribology and Tribo-Fatigue Methods / Gao Wanzhen, Jin Xuesong, Liu Qiyue // Тр. VI Международного симпозиума по трибофатике (ISTF 2010), 25 окт. – 1 нояб. 2010 г., Минск (Беларусь) / редкол. : М. А. Журавков (пред.) [и др]. – Минск : БГУ, 2010. – Т. 1. – С. 165–175.
Gapanovich, V. A. What Must Surface Hardness of Rails Be? / V. A. Gapanovich, L. A. Sosnovskiy // Тр. VI Международного симпозиума по трибофатике (ISTF 2010), 25 окт. – 1 нояб. 2010 г., Минск (Беларусь) / редкол. : М. А. Журавков (пред.) [и др]. – Минск : БГУ, 2010. – Т. 1. – С. 179–186.
Sosnovskiy, L. A. Fundamentals of Mechanothermodynamics / L. A. Sosnovskiy, S. S. Sherbakov // Тр. VI Международного симпозиума по трибофатике (ISTF 2010), 25 окт. – 1 нояб. 2010 г., Минск (Беларусь) / редкол. : М. А. Журавков (пред.) [и др]. – Минск : БГУ, 2010. – Т. 1. – С. 757–765.
Zhmailik, V. A. New Concept of Risk and its Technical Applications / V. A. Zhmailik, L. А. Sosnovskiy // Тр. VI Международного симпозиума по трибофатике (ISTF 2010), 25 окт. – 1 нояб. 2010 г., Минск (Беларусь) / редкол. : М. А. Журавков (пред.) [и др]. – Минск : БГУ, 2010. – Т. 2. – С. 15–24.
Sherbakov, S. S. Three–Dimensional Stress–Strain State of a Pipe with Corrosion Damage under Complex Loading / S. S. Sherbakov // Tribology – Lubricants and Lubrication / ed. by Chang-Hung Kuo. – Rijeka : InTech, 2011. – P. 139–172.
Sosnovskiy, L. A. Mechanothermodynamical System and Its Behavior / L. A. Sosnovskiy, S. S. Sherbakov // Continuum Mechanics and Thermodynamics [Electronic resource]. – Springer–Verlag. – 2012. – Mode of Access : http://www.springerlink.com/openurl.asp?genre=article&id=doi:10.1007/s00161-012-0235-z. – Date of Access : 02.03.2012.
Sosnovskiy, L. A. Mechanothermodynamical System and Its Behavior / L. A. Sosnovskiy, S. S. Sherbakov // Continuum Mechanics and Thermodynamics. – 2012. – № 24. – Р. 239–256.
Sherbakov, S. S. Modeling of the Damaged State by the Finite–Element Method on Simultaneous Action of Contact and Noncontact Loads / S. S. Sherbakov // Journal of Engineering Physics and Thermophysics. – 2012. – V. 85. – № 2. – P. 472–477.
Sherbakov, S. S. Study of the Influence of Bending on the Value of Friction Coefficient and Approach of Axes at Rolling / S. S. Sherbakov, L. A. Sosnovskiy, V. V. Kamisarau // ICEM-15. Experimental Mechanics. New Trends and Perspectives : proceedings of the 15th International Conference on Experimental Mechanics (Porto, Portugal, July 22–27, 2012) / editors : J. F. Silva Gomes, Mario A. P. Vaz. – Porto : Edicoes INEGI, 2012. – P. 891–892.
Sherbakov, S. S. Interaction of Several Bodies as Applied to Solving Tribo-fatigue Problems / S. S. Sherbakov, M. S. Zhuravkov // Acta Mechanica [Electronic resource]. – Springer–Verlag. – 2013. – Mode of Access : http://www.springerlink.com/openurl.asp?genre=article&id=doi:10.1007/s00707-013-0822-5. – Date of Access : 24.02.2013.
Sherbakov, S. S. Mechanical States of Multielement Tribo-Fatigue System with the Account of Contact and Dynamic Effects / S. S. Sherbakov // Book of Abstracts of the 3st International Conference on Vibro-Impact Systems and Systems with Non-Smooth Interactions (Leinsweiler, Germany, July 22–26, 2013). – Leinsweiler, 2013. – P. 10.
Sosnovskiy, L. A. Non-Classical Formulation of Dynamic Problem / L. A. Sosnovskiy, S. S. Sherbakov // Book of Abstracts of the 3st International Conference on Vibro-Impact Systems and Systems with Non-Smooth Interactions (Leinsweiler, Germany, July 22–26, 2013). – Leinsweiler, 2013. – P. 11.
Sosnovskiy, L. A. Limiting States of Metal / Polymer System under Sliding Friction / L. A. Sosnovskiy, A. V. Bogdanovich, S. S. Sherbakov // Proceedings of the World Tribology Congress V (Torino, Sept. 8–13, 2013). – Torino, 2013. – 3 p.
Sherbakov, S. S. Stress–Strain State and Damage of the Mutielement System with Complex Contact Interactions Between its Elements / S. S. Sherbakov, L. A. Sosnovskiy // Proceedings of the World Tribology Congress V (Torino, Sept. 8–13, 2013). – Torino, 2013. – 4 p.
Sosnovskiy, L. A. Mechanothermodynamic Analysis of Damage in Complex Systems with Contact Interaction / L. A. Sosnovskiy, M. M. Khonsari, S. S. Sherbakov // Proceedings of the World Tribology Congress V (Torino, Sept. 8–13, 2013). – Torino, 2013. – 4 p.
Sosnovskiy, L. A. Cyclic Elasto-Plastic Fracture Diagram and Some Parameters of Cyclic Crack Growth Resistance for the Plastic Steels / L. A. Sosnovskiy, A. V. Bogdanovich, S. S. Sherbakov // World Journal of Mechanics. – 2015. – № 5. – P. 80–85.
Lis, I. N. Durability Prediction of Metal-to-Metal Active System Operating under Mechano-Sliding Fatigue / I. N. Lis, A. V. Bogdanovich // Proceedings of VIII International Symposium on Mechanics of Materials and Structures and Fracture and Fragmentation in Science and Engineering Conference (Augustow, Poland, May 31 – June 3, 2015). – Augustow, 2015. – P. 110–111.
Sherbakov, S. S. Manipulation of Nanoobjects by Electromagnetic and Van der Waals Forces / S. S. Sherbakov, L. A. Sosnovskiy // Proceedings of VIII International Symposium on Mechanics of Materials and Structures and Fracture and Fragmentation in Science and Engineering Conference (Augustow, Poland, May 31 – June 3, 2015). – Augustow, 2015. – P. 147–148.
Veselukha, V. M. About the Life Assessment of Pipes of Linear Part of the Pipeline on the Basis of the Deformation Criterion of the Crack Growth Resistance / V. M. Veselukha, A. V. Bogdanovich // Proceedings of VIII International Symposium on Mechanics of Materials and Structures and Fracture and Fragmentation in Science and Engineering Conference (Augustow, Poland, May 31 – June 3, 2015). – Augustow, 2015. – P. 174–175.
Scientists about Tribo-Fatigue / Compiled by S. A. Tyurin // Bulletin of BelSUT. 2015. – № 1 (30). – P. 125–127.
Some Events and Main Stages of Tribo-Fatigue Evolution / Compiled by A. V. Kukharev, S. A. Tyurin // Bulletin of BelSUT. 2015. – № 1 (30). – P. 134–152.
Sosnovskiy, L. A. New Section of Physics / L. A. Sosnovskiy, S. S. Sherbakov, M. A. Zhuravkov // Bulletin of BelSUT. 2015. – № 1 (30). – P. 153–180.
Sosnovskiy, L. A. Mechanothermodynamics / L. A. Sosnovskiy, S. S. Sherbakov. – Springer, 2016. – 155 p.
Sherbakov, S. S. Mechanothermodynamic Entropy and Analysis of Damage State of Complex Systems / L. A. Sosnovskiy, S. S. Sherbakov // Entropy. – 2016. – Mode of Access : http://www.mdpi.com/1099-4300/18/7/268/htm. – Date of Access : 20.07.2016.

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