morning morning evidentiary hearing that ensues after a mine operator has contested one of the proposed penalties as it currently stands the lack of guidance has basically created that there's imprecision over who bears the burden of proof which party initially bears the burden of proof with proving the proposed assessment it evidence or hearing and then what is the burden of proof and the result has been first that ministry of law judges have in the last decade often times seem to have pulled their assessments out of thin air that aren't based upon any actual evidence or facts put forth in the record and so what that does is the result is that mine operators like american co are left with shouldering that burden so rather than secretary varying the burden initially the mine operators bear the burden they have to come in and disprove the proposed assessment or they can take a risk and not put in evidence and just see what the judge does on his or her own that's american culture position is this guidance in the current practice by the commission is contrary to the mine act and in this for the procedure and that clearly the secretary  at statute that is correct what rule if any do the secretary's directions to the inspectors have to do with that determination made by the ministry of law and judges and the commission that's the question mine operator and the man operator can do want to things they can pay it they can contest it and if they contested it begins a administrative hearing jurisdiction that attaches to the commission a separate agency and the commission then allows for discovery holds  evidentiary hearing and then ultimately the l j will issue his or her own assessments so they marched on what exactly so the question is you have two separate agencies you would hope in a perfect world that if in proposing an assessment they know all the facts they know all the facts they issue propose eyes met mine operator contest at the exact same facts come out before the judge you would hope that the judge would issue the same assessment sentencing prosecutors before the sentencing guidelines would ask for something and the judge would be looking at the same statute in the same general sense and criteria and come up with something different and they each have their own you know th prosecuting agent has has its own interest and evaluation and independent to cater has maybe a more balanced or different deal and if in either case it's based on factors and there's evidence showing those factors and there's valuation by the educator assessing those factors and i see all of that in this record but it will not we're not and we're not asking for mathematical proposal and it comes in it comes into evidence that actually in she often would have actually put it in evidence the secretary wouldn't put it into evidence during the hearing but is there because it's part of their petition for the assessment of penalty and the judges take those initial penalties and that's their starting point that's where they begin from and so then the judge is usually to move up or down what the proposal is and that's actually or maybe the mine operator comes in and says no actually no liability we were safe and these things didn't happen and i'm sure their case which the m days starts from there and says well that on these facts i actually think that's pretty much where i am convinced me otherwise you don't have cases of either kind they think because that's the way the adversary system works i agree with that your honor but the question is who initially bears the burden of proof of the proposed penalty attempt and this is the magic phrase on this is this wasn't a case where the monarchy was challenging the fact of the violations they were challenging the assessments they were che question so and it will highlight exactly why why this case exists under the regular assessment mechanisms so had to ensure decided that hey these violations we're going to regulate sesamoid we have for years passed it would have been about twenty thousand dollars if the mine operator had contested it and gone to a hearing and got the same result on the violations that they got with the older those below so there would have been of the five violations three had modern negligence reduced alone and one had high negligence we did here's what we think and you can use that to write like that but but to finish my point is sorry had we started with the twenty thousand dollars if we had gone into the sixty nine thousand six hundred did not exist ye and we going to the judge can we get the same result i promise i've done many of these cases that the judge never would have doubled the penalty to forty three thousand dollars he would have reduced the penalty and the only question is if he had done aren't you did you make that are so you went in and said regular assessment here's why you know we don't think we're libel at all but if we are this should be treated this way you make that argument we are yes yes you are so what we argued was we argued look your honor this special assessment came from actually no role in it i don't know so it never they never put in any other evidence on that particular one about where it came from why marion hanson penalty and so to the judge we said yes they failed to meet their burden of proving any enhancement you should just understanding they were there were a lot of facts here and wrote fighting about facts and things like gap but the facts of what the penalty was what the conduct was that the  penalty the ticket was written for and the facts about prior history of infractions not sadistically and how you are not computing the statistics i guess more or less  ensure has done i mean however there's a great argument that their current special assessment program is just arbitrary as pointed out by two of the two the commissioners and the split opinion the second split opinion but that's not what we're challenging our challenge sanction must be supported by considerable insubstantial evidence and the supreme court interpret that to mean a burden of proof by proponents the other it's not just the underlying factors but the sanction itself sanctions the fine is the penalty so is it the secretary's penalty proposals that you are directing to and think haven't been proven have been proven right so so this me to say was simply whatever the secretary proposes a penalty he or she factors and here's what i'm going to do but i'm in an adversary so i do agree but again i just tell you your honor that is if the secretary had never proposed seventy thousand dollars and they'd come in with a recess on the twenty there is there's a zero chance based on the judge's findings that it would have increased the penalty to forty three thousand two hundred over one hundred percent increase that would not have happened it would have been reduced it would have been probably ten to twelve and i mean bill you know come in and sa and section one of five be the mine act this is the section that m that this the commission often it does refer to but it doesn't rely upon its decisions about assessment and and that's section says that following the hearing that the commission shall affirm modify or vacate the proposed penalty so the proposed penalty is relevant it's the starting point by the statute by statute and if the judge so it's funny i think what the commission has done is they authority to assess and what you need to show is that the a l j and commission somehow misused that to work in the us and we have case law saying that the the secretary and just say that's conclusive the judge hears evidence on negligence and then the judge exercises his or her discretion and finds a negligence same thing in fact i'm i come back to one of five d when if the judges are truly independent the but that's my point the statute says that the judge is the commission shall affirm modify or vacate the proposed penalty but he means the proposed penalty should come into evidence the secretary should have to prove whether it should be affirmed and we should try to prove that it should be modified to be  was we have moved to compel the foreman of the inspector uses to start a special assignment and the judge actually said it was judge manning and he said denied he said however i understand their arguments about the special assessment and i'm going to require the secretary to bear the burden of proving the propriety of the special assessment so we go to the hearing and the secretary instead of like this case where the inspector came in and didn't know anything about the assessment in this case the secretary brought into witnesses the first witness was  inspector he said yes i recommended for special session and here's why i did it they did this on the rect examination i got to cross examine him on that and then they bring in another witness the assistant district manager who talks about the number where the number came from what it was based on why they  judge heard all the evidence and then we were able to cross examine him on the basis what were this number come from were these points how did you add them and the judge to the new count and the judge didn't have to accept it but that's just called the process they put on the evidence to show what we  could have i could have tried to get him here but again the point is that who bears the burden of proof and if the secretary comes in and something that one of the regulars has a five hundred they go in that that case actually it was a thousand dollars and they had they had proposed a fifty two thousand five hundred or complete it was like massively inflated and the question is why you know with that they should have to say to the judge because it is the starting point per the statute and because it's the starting point they should have to say where it came from what's it based on you know and they should and if they can't prove it up then the judge should disregard it like any other just to be for having thought this through with the record in front of me but one reason why our number is chosen and in what's kind of you know fight is going to be a bite that's felt and another factor is how intransigent has this operator been on this kind of thing and granted those are not you know chapter and verse going to give you a dollar amount but those it seems to me when you're talking about was there any burden met in support of a penalty amount i would say that would be the the crime aphasia case and that yes it would be pretty neat a burden and then that's when it comes in the operator to say wait a minute i'm not satisfied by that and push back with evidence that's not putting the burden on you to say you know they've come forward with a basic idea and in their experience a recommendation a great how of this case is if you actually look at what what the judge did there is you know ensure that the secretary of the secretary's regulations already assigned the maximum for mine size in proposing the penalties and it had no it was no different in the regular opinion that it really has you know if the secretary if if the commissioner judge said i'm going to inflate assessment because of the mind size the question is why why is it so much worse than what the secretary did again trying yet one more time the judge is obligation here it's clear he was obligated to utilize the six statutory penalty criteria in his determination of  independent determination using the l g is using the regular session a special session to come up with her determination that's her determination that's answer is ours is just a proposal that could be changed but in your understanding they have these same grids before them and they refer to them in deciding amounts yes there you mean the chairs yes yes your honor and so this there is the guidance for a special is what she's only looking at the statutory guide why isn't why isn't that all pushed to one side and say ok let's talk about the statute and see what was made here your own way and i would imagine because the regular cessnock of the special assessment or is it your understanding that that's something she can consider as she goes about weighing the statutory factors will just help me out of the other you're on  and the gentleman at the office of assessment referred to this to me at least as their bible they look at these and it's attached it's in the record and the so what what their time  mine and sees what happens in this case he for example the city guard violation for example he went to the my everything once a month let's say and every time he went this same there so these are the people the boots on the ground who are seeing the same thing happening over and over and over again and based on that among other things of course they determine that this is this is a here's that's that should confusing as the first time we have to a commission or sounds hearing about do they start with the sales i start with the secretary and number and special assessment or not and so that was your confusion because it seems as though something happened between the first commission decision and the second commission decision because all that happened then there was the evidence you know and of course you came to the commission and he did exactly that and when it came back to them the second time because it was appealed up again it seemed like it was a different pace and then i ask you do you have a position on whether the commission was correct in its first three man and i also found puzzling my judgment that found puzzling which is this anxiety that somehow referring to what the secretary has asked for is inundation of not being independent i mean we were for all the time to arguments that one council or another proposes it's part of the framework for thinking about a matter in dispute or do you have a position on whether the commission needed to rem son will be would have preferred it if they didn't but it's understandable why they did they wanted to have some more explanation from this is one of mars mission and specifically this issue of is this your starting point is that the secretary's position that the secretary's penalty proposal should be the starting point it's been over a view but let's start with that number of and you go down or up as it is that is and the secretar or show up in court may show up in court and it's the executive branch of the proposal as to what your time should be but the judge acts completely denote but in that context the judge doesn't have any duty to explain a departure from what the police officer recommend to the judge makes a decision here you've got the weird economy of the says start thank you never even seen it pretend it doesn't even exist the secretary proposal but at the end justify it in about this judge is independent determination is the judge is assertion itself and it's mind boggling that  as a judge the two affirming commissioners noted it's it's surprising that that judge's decision was treated so  mine operator thought how the secretary picks the cases to call for a special assessment as opposed to regular sentiment is utterly arbitrary it is irrational there is no rhyme or reason or worse there's a bad reason right if your mine operator her didn't contribute to somebody campaign you're going to get special assessments every time and if your mind operative did contribute you'll never get a special assessment let's say that's i'm not suggesting it or remotely is going on to totally hypothetical case but if that were going on and we all know that when you walk in to hear him and say this is a special assessment case bad actor it at least has some effect on how the starts the process or approaches case how does the mine operator ever challenge the arbitrariness or on wall honus of the secretary's approach think is unpredictable arbitrary as to when you do a special assessment or not so when and how with the mine operator or never will they be able to challenge the secretary's erratic in to say is what do you what are we even doing a special assessment land because you're always coming after me with special assessments you never go against these other mines or special assessments i have no idea on what possible fair and rational basis you're making these distinctions because the board you're mining operator that has a hundred and nine violations you're a mine operator that has that has by the asians under the serious rules to for similar kinds of violations the rates should be lower and we're not such a bad actor given the volume of all we produce our rates of these kinds of violations are actually lower rates for other operators so they are making a case about you know contextualizing as and saying it actually isn't supported by the factors that the a l j relied on as a as a way of pinpointing in their view what really was going on was this they don't put in this term for the dissenting commissioners put it in the terms of entering according to just what was sought by the secretary that is so powerful that it irrelevant and it's irrelevant because of one thing this particular is on this day in this case so if you didn't do it and i believe that and it's if you don't point nine to five of one percent of the time we know it's not arbitrary in that point ninety five percent of the time because the l g is looking at the same facts or rather that the secretary looks at they're looking at the same does have a couple of quick points i'd like to start almost where you left off and that is how i did mine operator ever challenge an in arguably arbitrary special assessment so for whatever reason the secretary proposes an arbitrary what's an operator to do and we submit that the proper procedure is if we can test it if the mine operator contests it the secretary shows the number to the judge at the hearing and then proofs and sets out to show why the enhancement was given what's to stop you from doing all the challenge in your life and that individual hearing can you believe this number there's no basis for this number well it's not just the number though it's what's the rationale where they come from and why did you do that hence it five times and they get a chance then the said they agreed that all the facts have to be proved wrong well they are upon i mean i'm saying in our in our situation right that's what we should be they should approve of but what in effect is actually occurring is that the judges don't feel the pressure of all they have to meet the burden of proof on the number or the special assessment and he based his proposal for a special cessna on the minds history of violations and then the documents that the secretary had provided the mine operator showed that the special enhanced was given for gravity and i didn't see it had this vote alan hansen it was not even based on history of violations so what the inspector said and what the document that shows were in she came up with a number were completely inconsistent and if we start with an arbitrary assessment any say is i think there is confusion and that's why we're here the first decision was a three two by the commission the second decision was a two two by the commission that the judges that i've dealt with they're really good people and they're looking for a good answer and they don't want to create an arbitrary penalty and they they want to do the right thing and that's why they refer to section one hundred point three they do refer to the regular size mechanism often when setting their families because it's an objective guidelines that went through notice and comment rule making and they think it's fair and so that's could and i think it's possible they might do that for a small mine operator in a case but i've never seen it personally but i think that i think the record about actually that you said you know i'm not sure about that so i think this court can correct the confusion by simply saying that the secretary birds of burden of proving any special