A1: The judge needs to dismiss or prohibit DPE from utilizing any of the records that were photocopied during the visit since DPE never required Wiley to keep these records. In regards to the payroll for the previous year, the judge should rule that they cannot be used because it was illegally acquired. As outlined in 9057, the evidence is only admitted where it is the kind of evidence upon which reasonable individuals are accustomed to rely in conduct of serious affairs. Moreover, this evidence could not be admitted because they were merely photocopy and the author was not available for cross-examination or subject to subpoena. Also, these were confidential information that were pursuant to Title 22. These copies were obtained without any search warrant and hence illegally obtained. Moreover, it was subjected to subpoena which the two officers were lacking and hence are inadmissible and cannot be relied on this case (Rose-Ackerman, Egidy and Fowkes 2015). The correct position was for the agency to use subpoena whereby it would require the attendance and testimony of witness as well as production of any evidence linking to any matter of fact in proceeding. In respect to records on all chemicals received by company in past year, the first ground to reject its admissibility is that they were never required by DPE. Also, they were illegally obtained as there was intrusion trespass into the facility without any appointment or search warrant. In respect to records on all disposal of asbestos materials since Wiley was last approved this should be as be inadmissible because they were illegally obtained. Regarding Wiley’s personal appointment book, this was total intrusion in Wiley’s personal life in total disregard to the law. This was a trespass and hence this cannot be admitted as evidence.
A2: The judge needs to prohibit the DPE from utilizing any of samples taken in the course of visit, either from inside or outside building since the DPE never had a warrant to inspect Wiley’s premises. The main ground here is that this purported evidence were illegally obtained. The judge should argue that since the criminal litigation remains procedural and highly technical, it is imperative that officers must adhere to certain rules including need for warrants to search premises lest the criminal might be set free or punish an innocent person. Because evidence remains core aspect of criminal prosecution and is the prosecution to prove its case beyond any reasonable doubt, procedure for collecting evidence must be fully adhered to. Thus, in this case, a search warrant was mandatory that would otherwise allow the executing officers to enter into the Wiley’s premise to search solely evidence specified in the warrant. The officers failed to adhere to the general rule for as search to be carried out, which required the two officers conducting the search to arm themselves with a search warrant and when search is carried out on premises without a search like in this case, it becomes unlawful search.
A3: The judge needs to prohibit DPE from allowing Joe to repeat Sue’s statement about “oozing waste” she already made to him. A. In any proceeding carried out by AA, the DPE this is because they were initially never had any legal ground in the first place to enter into the Wiley’s premises. This is the reason he should never be allowed to continue repeating the statement earlier made. This will serve justice to Wiley since the continual use of this statement will be undue to the plaintiff. This statement should as well not be allowed to be repeated in court in case Wiley appeals the DEP’s decision. This is because an illegally or unlawfully obtained evidence should never be admissible at all if justice is to be served. Where they are allowed to continue using this statement will put Wiley at a disadvantaged position. The law should be followed from because any deviation will lead to wrongful conviction is not what is intended.
A4: The judge needs to prohibit the DPE from imposing any criminal sanctions on Wiley and from providing any records, samples, observations, and other evidence acquired from the visit to prosecutors for utilization in criminal proceedings. The Judge should rule based on the main ground that these evidence are all inadmissible because they were all illegally acquired and hence using them will not serve Wiley any slight justice. Therefore, the Judge should find and hold that DPE cannot impose any criminal sanctions on Wiley. This is because there was never any due process followed. In the first place, the evidence they used to put such sanctions were illegally acquired and hence already violated the law. Also, Willey was not given any opportunity to be heard and hence this was in total violation of the laws which then bars any sanctions. The judge should also find and hold that the prosecutor cannot use the DPE records against Wiley in a criminal proceeding. The court needs to find that they have power to correct and modify the records. The Judge should argue that the DPE cannot use these records because they had no legal basis in the first place to acquire them.
A5: The judge need to overturn the Board of Protection of the Environment decision since this Board had violated Wiley’s due process rights. The judge should rule that due process is imperative in criminal law. This is because due process calls for procedure by which laws become applied must be evenhanded. It bars people from being subjected to arbitrary exercise of government power. The judge should hold that the due process was never followed or satisfied by determining whether such procedure was required historically. The due process requirements and goals must be followed. In the case, the due process element of minimizing substantially unfair. There was never notice or hearing before an impartial tribunal. There was no opportunity for confrontation as well as cross-examination, and for discovery. The notice remains elementary and fundamental requirement of this due process. The hearing is needed prior to individuals being finally deprived of a property or liberty interest.
A6: In another distinct proceeding, Mr. Society files a case against DPE claiming defamation of character. A. Judge should in this case find and hold that Wiley is a private person. This is because there was a direct attack on his persona and not the business. For example, he was defamed when the news appeared in the article that no one should buy from his business. Indeed he went further and stated that Wiley deliberately place the people’s health at risk. This was a clear defamation because one officer even directly said that Wiley was the scum of earth. This was bad as the evidence that they used to talk this ill about Wiley were illegally acquired in the first place. B. However, despite these clear case of defamation, Wiley’s chances of successfully suing Department of Environment Protection officials provided “sovereign immunity” is slight. This is because these officials mentioned very well that they are with government and did not even care whether they had the required search warrant.
A7: Wiley ask Mr. Society if he meets the “standing” requirements and that of “ripeness”. This section presents an explanation of what requirements are as well as how Wiley does or does not meet such requirements. The standing doctrine is the legal right or a person to bring a lawsuit to the court. It requires the plaintiff or an individual who bring a lawsuit, has either been affected by events in case or shall be imminently affected or even harmed of the court fails to address the problem. Wiley meets this criteria as he stands affected should the case rules against him (Tulman, Feinstein & Kule-Korgood, 2015). The standing requirements including injury, causation and addressability. The plaintiff has to showcase either that he has been injured in a specific manner or shall get injured in a specifically manner in case the court doesn’t act to bar it. In this case Wiley is entitled injunctions financial injury when officers defamed him by telling the public never to buy for him. In regards to causation, the plaintiff has to showcase there is certain linkages between injury and defendants actions or planned actions. In a complaint, the causation is often shown a single sentence connecting defendant’s acts to plaintiff’s injury. The complex question is engaging cause in fact/proximate cause are always saved for trial. Addressability: the context has to be one which that court is able to fix. The doctrine of ripeness prohibits federal courts from exercising jurisdictions over a case till an actual controversy is presented that involve a threat of injury which is real as well as immediate. The ripeness doctrine remains a query of subject matter jurisdiction. This a case proper to be taken into account where issues remain legal as controversy is never relied on coming uncertainty. In case medication remains a condition precedent to beginning of litigation and it has been completed like in this case where Wiley was never given a hearing, the underlying controversy here stays reliant on such uncertainties as whether the needed hearing shall take place, and if so, whether it shall resolve all or certain amount of underlying claims.
A8: A: The rule remains invalid on its face since the DPE does not have the authority of banning MTE. The basis of this argument is that it is only the court that needs to examine the legally acquired evidence to give a ruling on whether MTBE can be burned. Moreover, this DPE used illegally acquired evidence and without following the due process went further against the law to effect the burn. B. The law is also invalid on its face since DPE needed to have treated the rule as a key substantive rulemaking. However, the DPE went ahead without using treating it as substantive rule making and hence remains invalid. Before adopting any rule, the DPE ought to have given notice as anchored in section 8053 and might have held a public hearing. This law never met the only exception that a public hearing has to be held if else needed by statute or even requested by any five interested individuals or if the rule is major substantive rules as anchored section 8071, subsection two, of paragraph B. C: The rule remains invalid as applied to Wiley since DPE doesn’t have authority to regulate MTBE as Wiley is utilizing it. The basis for this argument is that the DPE went overboard and put restrictions that cannot be legally binding as it had no such jurisdictions. D: The most strong argument is A. This is not only strong but also an easy way to prove this case. This is very strong because, the plaintiff also needs to prove that the DPE lacks the authority to ban MTBE and stops here. This would mean that any ban done by DPE would be invalid. It is also strong because once it is proven that the law was never treated as a substantive rule making, it is automatically axed and even its associated application (Redish and Karaba 2015).
A9: If this case is taken to court: A: The court will closely review the rule of DPE. As anchored under the right to review. Subchapter 7 provides that there can be a judicial review. They will closely review the agency action. This is because the Wiley is aggrieved by the DPE’s final decision and the future of his business hangs on the balance. The court will have to closely undertake the judicial review. This is because the final decision by the agency is entitled to judicial review. B: If the court invalidates the law on its face, the law will become inapplicable and will have to be referred back and treated as substantive rule making. If this happens, Wiley will be relieved and that the charges against him will be dropped. C: If the court rules that the law is invalid as applied, then the law remains active and the court will apply it accordingly in this case to make a decision.
A10: If Wiley sues the DPE for “taking” his property or business without compensating him as the Constitution provides, then Wiley has a higher likelihood of having this case ruled in his favor. As has been seen, the due process was never followed and even the evidence collected were inadmissible. This makes Wiley stands and an advantageous position to win this case once it is proven that indeed his business was taking without being compensated.
A11: I am convinced that there is a need for a better way for making sure that there is a healthy environment instead of prescriptive, command as well as control, regulations DPE used for asbestos alongside MTBE, especially as a result of his product might assist cure cancer. I think there is nothing that in the current law which would assist Wiley. The government has option of charging for externalities caused by Wiley business to bring compliance with the intent of rules and laws. These options can be made to work by having a specific department in DPE that looks at how these externalities are charged and monitor whether they are paid for effectively (Burke and Goldman 2015).
A12: A: Mr. Society is allegiance to Wiley ethically and morally. This is because he takes the decision made by Wiley and would always not go against him. Wiley’s allegiance is to his business ethically and morally. He is quite concerned with his business than the public who suffer from his actions C: It matters who their allegiance is to because their actions bring externalities to others beyond their allegiance.
References
Burke, M.M. and Goldman, S.E., 2015. Identifying the associated factors of mediation and due process in families of students with autism spectrum disorder. Journal of autism and developmental disorders, 45(5), pp.1345-1353.
Redish, M.H. and Karaba, J.M., 2015. One Size Doesn’t Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism. BUL Rev., 95, p.109.
Rose-Ackerman, S., Egidy, S. and Fowkes, J., 2015. Due Process of Lawmaking. Cambridge University Press.
Tulman, J. B., Feinstein, A. A., & Kule-Korgood, M. (2015). Are there too many due process cases? An examination of jurisdictions with relatively high rates of special education hearings. University of the District of Columbia Law Review, 18(2), 244-272.
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