49 F.Supp.2d 597 (1999)
UNITED STATES of America ex rel. Roger Collins, Petitioner,
v.
George WELBORN, Warden, Menard Correctional Center, Respondent.
UNITED STATES of America ex rel. William Bracy, Petitioner,
v.
Richard GRAMLEY, Warden, Pontiac Correctional Center, Respondent.
Nos. 93 C 5282, 93 C 5328.
United States District Court, N.D. Illinois, Eastern Division.
May 6, 1999.
*598 Robert Hugh Farley, Jr., Robert H. Farley, Jr., Ltd., Naperville, IL, Stephen E. Eberhart, Tinley Park., IL, for petitioner Collins.
Gilbert H. Levy, Seattle, WA, John L. Stainthorp, People's Law Offices, Chicago, IL, for petitioner Bracy.
Steven Joseph Zick, Terence Madsen, Illinois Atty. General's Office, Chicago, IL, for respondent.

MEMORANDUM OPINION AND ORDER
HART, District Judge.
In 1980, Frederick Lacey, R.C. Pettigrew, and Richard Holliman were found shot to death near a viaduct south of the downtown area of Chicago, Illinois. Following a jury trial in the Circuit Court of Cook County, Illinois before Judge Thomas Maloney, petitioners Roger Collins and William Bracy were found guilty of the three murders and related charges. Collins and Bracy were sentenced to death on the murder convictions. The murder convictions and death sentences were affirmed on direct appeal, People v. Collins, 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267, cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985), and postconviction relief was subsequently denied, see People v. Collins, 153 Ill.2d 130, 180 Ill.Dec. 60, 606 N.E.2d 1137 (1992), cert. denied, 508 U.S. 915, 916, 113 S.Ct. 2355, 124 L.Ed.2d 263 (1993). Bracy and Collins then filed separate federal habeas corpus petitions, which were consolidated in this court.
Petitioners raised a number of claims[1] in their federal habeas corpus petitions, see United States ex rel. Collins v. Welborn, 868 F.Supp. 950, 967 (N.D.Ill.1994) ("Collins"), all of which were held to be an insufficient basis for relief. See id. at 967-94. Subsequent to the state court trial, Judge Maloney had been indicted and convicted of racketeering offenses involving the acceptance of bribes to fix cases. See United States v. Maloney, 71 F.3d 645 (7th Cir.1995), cert. denied, 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996). Petitioners did not attempt to bribe Maloney nor did he solicit a bribe from them. Petitioners contend, however, that Maloney compensated for his defendant-favoring rulings in cases involving bribes by being especially hard on defendants who did not pay bribes. Petitioners also alleged that another judge assigned to hear their postconviction proceedings accepted bribes to fix cases. Any claims based on corruption of the postconviction judge were denied on grounds of waiver. See Collins, 868 F.Supp. at 991.
*599 Claims based on Maloney's bribetaking were not waived for failure to raise in the state courts because the claims were based on some evidence that was not publicly revealed until after postconviction relief had been denied at the trial level. See id. It was recognized that "[t]he constitutional right to a fair trial includes the right to a trial judge who is neutral, detached, and free from bias." Id. However, petitioners did not contend they had sufficient facts to presume or show the compensatory bias they had alleged. Instead, they contended that they were entitled to additional discovery in order to attempt to prove Maloney's bias. It was held that petitioners failed to show good cause for further discovery and therefore the claims related to Maloney's corruption were denied. Id.
Collins was affirmed on appeal to the Seventh Circuit. Bracy v. Gramley, 81 F.3d 684 (7th Cir.1996) ("Bracy I"). As to the claims related to Maloney's corruption, the Seventh Circuit held that a claim of being tried by a biased judge does not require a showing of a prejudicial effect on the outcome of the trial as long as there is a showing of either actual bias or "a possible temptation so severe that we might presume an actual, substantial incentive to be biased." Id. at 688 (quoting Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363, 1380 (7th Cir.1994) (en banc), cert. denied, 514 U.S. 1037, 115 S.Ct. 1404, 131 L.Ed.2d 290 (1995)). A showing of an appearance of impropriety would be an insufficient basis for relief. Bracy I, 81 F.3d at 688. In passing, the Seventh Circuit also noted that no precedent existed for the proposition that accepting bribes in some cases automatically invalidated a judge's rulings in other cases in which the judge did not take or solicit bribes. Therefore, it was indicated that relief on such a theory would violate Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Bracy I, 81 F.3d at 689. Bracy I, 81 F.3d at 689-90, holds that petitioners only had sufficient evidence to make out a case of an appearance of impropriety, which would not be enough to support relief. The Seventh Circuit believed that, at most, petitioners would be able to show that Maloney generally favored the prosecution in cases in which he was not bribed, but would not be able to show that such a bias occurred in petitioners' case itself. As to petitioners' request for further discovery that would enable them to show actual bias, the Seventh Circuit held that petitioners had not shown good cause for discovery. Id. at 690-91. The Seventh Circuit noted that the transcript of Maloney's criminal trial and his record of rulings in the criminal cases in which he presided were all of public record. The Seventh Circuit reasoned that, since there was no indication that those records supported actual bias in petitioners' criminal case, discovery under Rule 6(a) of the Rules Governing Section 2254 Cases was also unlikely to yield evidence of actual bias. Id.
The Supreme Court granted certiorari only on the issue of whether petitioners[2] had made a sufficient showing of good cause for discovery on the bias issue. In order to resolve that question, the Supreme Court "first identif[ied] the `essential elements'" of the judicial-bias claim. Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 1797, 138 L.Ed.2d 97 (1997) ("Bracy II"). It held that "the floor established by the Due Process Clause clearly requires a `fair trial in a fair tribunal' before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Id. (quoting Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). The Supreme Court described petitioners' theory as follows: "Petitioner contends, however, that Maloney's taking of bribes from some *600 criminal defendants not only rendered him biased against the State in those cases, but also induced a sort of compensatory bias against defendants who did not bribe Maloney. Maloney was biased in this latter, compensatory sense, petitioner argues, to avoid being seen as uniformly and suspiciously `soft' on criminal defendants." Bracy II, 117 S.Ct. at 1797. The court concluded that, "difficulties of proof aside, there is no question that, if it could be proved, such compensatory, camouflaging bias on Maloney's part in petitioner's own case would violate the Due Process Clause of the Fourteenth Amendment." Id. Referring to evidence of pervasive bribetaking that was presented in Maloney's federal criminal trial and various other evidence, see id. at 1798, the Supreme Court concluded that good cause had been shown for further discovery that might enable petitioners to show actual bias at their trial. Id. at 1799.
In a subsequent habeas corpus case involving a Cook County judge who accepted bribes from the habeas petitioner's codefendant in the state criminal case, the Seventh Circuit summarized the law as follows:
A criminal defendant has a federal constitutional right to be tried before an impartial judge. The right is not subject to the harmless-error rule, so it doesn't matter how powerful the case against the defendant was or whether the judge's bias was manifested in rulings adverse to the defendant. And it is irrelevant that [the defendant] was convicted by a jury, a judge's role in a jury trial is obviously not of a merely ministerial character .... A bribed judge is deemed partial whatever the fact of the matter may be.
Cartalino v. Washington, 122 F.3d 8, 9-10 (7th Cir.1997). Cartalino suggests that receiving bribes in some cases is not sufficient proof of bias in another case, "merely a suspicious circumstance that warrants further inquiry" and requires additional proof to show actual bias in the latter case. Id. at 10. Cartalino, though, only involved bribes by a codefendant.
Following the remand from the Supreme Court, the parties engaged in extensive discovery of the federal government's file from the Maloney criminal prosecution, including nonpublic documents, and other discovery, including depositions of associates of Maloney and attorneys involved in petitioners' trial. The parties were not able to obtain a deposition from Maloney himself; he refused to participate because he claimed he had not received proper notice. Rather than attempting to resolve whether Maloney's refusal to comply with the deposition notice was justified, it was ruled that the parties would be permitted to bring Maloney to Chicago for any necessary hearing on petitioners' claims and any questions about lack of cooperation or invoking the Fifth Amendment would be resolved by this court at that time. A similar ruling was made regarding deponent William Swano's invocation of the Fifth Amendment. Swano is a now-disbarred attorney who paid bribes to Maloney and was a codefendant of Maloney in the federal prosecution.
After the close of discovery, the parties were provided with the opportunity to bring summary judgment motions, although both sides initially indicated that they did not believe the evidence would support summary judgment. Nevertheless, both sides subsequently filed summary judgment motions which are presently pending for ruling. Also pending is petitioners' unopposed motion to expand the record, which will be granted without prejudice to respondents' objections that any of the additional evidence is inadmissible or otherwise deficient.
Rule 11 of the Rules Governing Section 2254 Cases permits the application of the Federal Rules of Civil Procedure to the extent consistent with the § 2254 Rules. Thus, Fed.R.Civ.P. 56 may be applied in a § 2254 proceeding to determine whether factual disputes exist that require a hearing. See Matta-Ballesteros v. Henman, *601 896 F.2d 255, 259 (7th Cir.), cert. denied, 498 U.S. 878, 111 S.Ct. 209, 112 L.Ed.2d 169 (1990); Whitaker v. Meachum, 123 F.3d 714, 716 n. 2 (2d Cir.1997); Randle v. Scott, 43 F.3d 221, 226 (5th Cir.), cert. denied, 515 U.S. 1108, 115 S.Ct. 2259, 132 L.Ed.2d 265 (1995).
On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Valance v. Wisel, 110 F.3d 1269, 1274 (7th Cir. 1997); Patel v. Allstate Insurance Co., 105 F.3d 365, 367 (7th Cir.1997). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir.1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir.1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir.1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). As the Seventh Circuit has summarized:
The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); id. at 325, 106 S.Ct. 2548 ("the burden on the moving party may be discharged by `showing'  that is, pointing out to the district court  that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992).
Respondents argue two alternative grounds in support of summary judgment. They contend that petitioners' claims are barred by the rule of Teague because the claims rely on a new rule of law. Alternatively, they contend that petitioners cannot show actual bias by Maloney. Petitioners *602 respond that they do not rely upon a new rule of law and further contend that they are entitled to summary judgment because there is irrefutable evidence of Maloney's actual bias.
Despite the fact that it was reversed, respondents repeatedly cite to and rely upon the Seventh Circuit decision in Bracy I. Arguably, the Supreme Court did not disagree with the Seventh Circuit as to the law governing petitioners' claims. The Supreme Court's description of the actual bias standard is consistent with statements in Bracy I. The Supreme Court did not expressly address Bracy I's discussion of appearance of impropriety. Where the two opinions disagree is that the Supreme Court found good cause for further discovery of evidence necessary to prove actual bias. But even assuming Bracy I's statement of judicial-bias law, including its statement as to Teague, is still good law, it does not help respondents. Bracy I, 81 F.3d at 689, indicates that a holding that an appearance of impropriety exists that supports relief would be a new rule of law barred by Teague. Petitioners, however, do not rely on an appearance of impropriety; they claim that Maloney was actually biased against them. There is no indication in Bracy I, Bracy II,[3] or Cartalino that the actual bias rule is a new rule of law.
A recent district court case that expressly addresses the Teague issue does hold that Bracy II represents a new rule of law. See United States ex rel. Giangrande v. Roth, 1999 WL 184184 *4-5 (N.D.Ill. March 29, 1999). Giangrande, 1999 WL 184184 at *5-6, also goes on to hold that Teague does not bar the retroactive application of Bracy II because the Supreme Court has applied it retroactively and it is one of those rules that goes to the concept of ordered liberty.
In Teague, the Supreme Court held that new constitutional rules of criminal procedure would not be applied retroactively to cases on collateral review. 489 U.S. at 300-01, 109 S.Ct. 1060. As the Court noted, it is "often difficult to determine when a case announces a new rule.... In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 301, 109 S.Ct. 1060. The Court identified two exceptions, one of which is that "a new rule should be applied retroactively if it requires the observance of `those procedures that are "implicit in the concept of ordered liberty."'" Id. at 307, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937) (Cardozo, J.))). The Court further describes this exception by explaining that it is limited to procedures that both "implicate the fundamental fairness of the trial" and "without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 312-13, 109 S.Ct. 1060.
Courts have identified a three-step analysis for applying Teague.
First, the court must ascertain the date on which the defendant's conviction and sentence became final for Teague purposes. Second, the court must survey the legal landscape as it then existed and determine whether a state court considering the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks *603 was required by the Constitution. Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle.
Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). Accord Winsett v. Washington, 130 F.3d 269, 275 (7th Cir.1997); Spreitzer v. Peters, 114 F.3d 1435, 1442 (7th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998).
In the present case, the state sentences and convictions became final for Teague purposes when, following direct appeal in the Illinois courts, the United States Supreme Court denied certiorari. See Spreitzer, 114 F.3d at 1442. That date is October 21, 1985.
Bracy II clarified the standard for discovery in federal habeas corpus proceedings, but it did not establish any new rule of constitutional law. More than a half century before petitioners' convictions became final, the Supreme Court had established that actual bias of the presiding judicial official violates constitutional due process. See Tumey v. Ohio, 273 U.S. 510, 522, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ("it certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case"). See also In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) ("Fairness of course requires an absence of actual bias in the trial of cases."); Margoles v. Johns, 660 F.2d 291, 297 (7th Cir.1981), cert. denied, 455 U.S. 909, 102 S.Ct. 1256, 71 L.Ed.2d 447 (1982) (quoting Howell v. Jones, 516 F.2d 53, 57-58 (5th Cir.1975), cert. denied, 425 U.S. 945, 96 S.Ct. 1687, 48 L.Ed.2d 189 (1976)) ("They involved situations where there was actually some incentive to find one way or the other, i.e., financial considerations (Ward & Tumey) or previous participation by the trying judge in the proceedings at which the contempt occurred (Murchison)."); Bracy II, 117 S.Ct. at 1797 (citing Tumey). The Court of Appeals' discussion of Teague in Bracy I concerned appearances of impropriety. There is a distinction in the case law between appearances of impropriety and actual bias. Whether certain circumstances constitute an appearance of impropriety is a legal question. See In re Hatcher, 150 F.3d 631, 637 (7th Cir.1998). Whether a judge was actually biased is a factual question. Cf. Gonzales v. Thomas, 99 F.3d 978, 986 & n. 5 (10th Cir.1996), cert. denied, 520 U.S. 1159, 117 S.Ct. 1342, 137 L.Ed.2d 501 (1997) (whether a juror is actually biased is a question of fact). Teague concerns the application of new rules of constitutional law, not the treatment of possible factual findings of bias.
Prior to 1985, it was also established that a showing of "a possible temptation so severe that we might presume an actual, substantial incentive to be biased," Bracy I, 81 F.3d at 688 (quoting Del Vecchio, 31 F.3d at 1380), is sufficient. See Cartalino, 122 F.3d at 11 (citing Tumey); Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) (quoting Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)) ("the inquiry must be not only whether there was actual bias on [the judge's] part, but also whether there was `such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused'"). Cf. Dyer v. Calderon, 151 F.3d 970, 984-85 (9th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 575, 142 L.Ed.2d 479 (1998) (implied bias of juror is a rule of law that predates the Constitution).
Also, prior to 1985, it was established that a claim based on actual bias of the judge does not require proof of a prejudicial effect in the case. Tumey, 273 U.S. at *604 535, 47 S.Ct. 437. See also Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Petitioners do not rely on a new rule of law to support their claims that Maloney was actually biased against them. But even if Bracy II were to be construed as a new rule of law, Teague would not bar petitioners' claims. The impartiality of the judge presiding over a criminal proceeding goes to the fundamental fairness and accuracy of a proceeding and therefore is implicit in the concept of ordered liberty. See Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (impartiality of trial judge goes to the fundamental fairness of a trial and, without such impartiality, "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence"); Giangrande, 1999 WL 184184 at *6. Teague does not bar petitioners' actual bias claim.
The next question is whether petitioners have sufficient evidence of actual bias so as to be able to withstand summary judgment. As part of the sentencing process in Maloney's federal criminal prosecution, the government submitted its version of Maloney's offenses (hereinafter "Government Version") which then became part of the presentence report in the case which was submitted by the Probation Department to the court, with copies provided to Maloney and the government. Petitioners rely on the following passages from the Government Version:
... THOMAS MALONEY's corruption began at the time he was a criminal defense attorney paying off judges and court personnel to fix cases-including a notorious murder case-and continued through the time he was a judge working as a mafia factotum in the Cook County Circuit Court system and taking all manners of bribes on very serious criminal cases. Thomas Maloney's reputation as a strict prosecution-oriented judge was not mistake. By casting this image, Maloney sought to deflect suspicion from his criminal activity, while simultaneously giving select desperate defendants who knew the right people an incentive to pay him off.
* * * * * *
... when he got his turn on the bench, THOMAS MALONEY imposed a sinister system which had the dual effect of concealing and promoting his corruption. THOMAS MALONEY the former champion of the defendant became one of the most ruthless judges on the bench. Showing defendants little mercy had the effect of diverting any conceivable suspicion from MALONEY while at the same time giving defendants a strong motivation to cough up big bribery dollars.
Petitioners contend that the Government Version is admissible as a public report pursuant to Fed.R.Evid. 803(8) which provides:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Without citing any supporting case law and without making any separate argument in their reply brief, respondents make the following contention in their Local General Rule 12(N)(3)(b) statement.
Admit that the Government's Official Version is correctly quoted. Deny that this document is precedential authority. As this Court is no doubt aware, this *605 type of document is created for the benefit of the federal Probation Department as an aid in the preparation of its sentencing recommendation. It is not filed separately by the United States Attorney, and is never a part of the public record, but is eventually received by the district court as part of the Probation Department's recommendation. It should be regarded as being in the nature of a summation of what was proved at trial, and has no particular significance concerning events outside the trial it describes. It is not the law, and is no substitute for case law or the trial record in Maloney's own case. It is likewise no substitute for an independent determination of the ultimate issue in this case, the resolution of which rests with this Court alone.
Rule 803(8)(C) requires that the evidence be (a) a report or statement of a public office or agency; (b) factual findings; (c) result from an investigation made pursuant to authority; and (d) not indicate lack of trustworthiness. Clearly, the United States Attorney is a public office or agency. There is no requirement that the report itself be publicly disclosed. See Redmond v. Baxley, 475 F.Supp. 1111, 1122 (E.D.Mich.1979). The Government Version is a factual finding in that it summarizes the facts that the government found regarding Maloney's offenses and related conduct. Contrary to respondents' objection, factual findings include factually based conclusions or opinions made by the preparer of the report based on disputed evidence. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). The report resulted from an investigation made pursuant to the prosecutors' legal authority. As long as it satisfies the trustworthiness requirement, the Government Version is admissible under Rule 803(8)(C). Cf. United States v. Tobin, 28 F.Supp.2d 674, 677 n. 4 (D.Mass.1998) (dictum) (presentence report would be admissible evidence in a civil fraud action brought by the victims of the crime).
Since the other requirements of Rule 803(8)(C) are satisfied, the Government Version is presumed to be trustworthy and the burden is on respondents to show that it lacks trustworthiness. Ariza v. City of New York, 139 F.3d 132, 134 (2d Cir.1998); Montiel v. City of Los Angeles, 2 F.3d 335, 341 (9th Cir.1993); Cortes v. Maxus Exploration Co., 977 F.2d 195, 201 (5th Cir. 1992); Van Houten-Maynard v. ANR Pipeline Co., 1995 WL 317056 *9 (N.D.Ill. May 23, 1995); In re Air Crash Disaster at Sioux City, Iowa, on July 19, 1989, 780 F.Supp. 1207, 1212 (N.D.Ill.1991). Respondents certainly have not met this burden and it is not even clear that they even contend the Government Version is not trustworthy. In any event, the Government Version appears to be trustworthy. It is thorough and detailed and there is no indication that it is inconsistent with the evidence regarding Maloney's crimes. It is an adversarial document, and therefore may be slanted to support the government's position. But that goes to the weight to be accorded the document; it does not make it untrustworthy. Also, unlike the litigants in a civil action, a criminal prosecutor also has a duty to do justice and therefore does not necessarily zealously slant the facts to support a position. The Government Version is admissible evidence.
On respondents' summary judgment motion, factual disputes must be resolved in petitioners' favor and all reasonable inferences from the evidence must be drawn in petitioners' favor. Therefore, on respondents' motion, it must be accepted as true that Maloney consciously acted against non-bribing defendants as a means of both generating bribes and increasing the amount he could demand, as well as in an attempt to cover up and protect the bribery that was going on. This is unlike a judge who is "tough" on defendants as a means of getting reelected or because of his or her philosophical views. See Bracy I, 81 F.3d at 689. Instead, this is a situation *606 where a judge is motivated to rule against defendants in order to benefit financially.
On respondents' motion, it must be assumed to be true that Maloney's corruption was pervasive and that he was generally acting in a calculated manner to generate additional bribery income. Petitioners point to sufficient evidence to link this motivation to their case and support a genuine factual dispute that Maloney was actually biased against them. Respondents' motion for summary judgment will be denied.
On petitioners' summary judgment motion, disputes must be resolved in respondents' favor and all reasonable inferences drawn in respondents' favor. On petitioners' motion, Maloney's corruption cannot be assumed to be as pervasive as was assumed to be true for purposes of respondents' motion. Further, the parties have not yet had an opportunity to obtain Maloney's testimony. See Fed.R.Civ.P. 56(f). On petitioners' motion, it cannot be conclusively determined that Maloney was actually biased in petitioners' case. That factual issue will have to be resolved following a hearing before the court.
The next steps in this case are to prepare a pretrial order and hear the evidence. Because the hearing is before the court, not a jury, it need not be held on consecutive days. Because Maloney and Swano did not fully testify at depositions and because it may be difficult to have them available on a precise date, the court will hear their testimony prior to the remainder of the evidence. The parties shall forthwith begin the process of issuing writs to bring these two witnesses to Chicago to testify.
The parties shall also engage in the preparation of a final pretrial order that will be submitted in open court on July 20, 1999. The parties shall submit a pretrial order limited to the following items: (a) an agreed statement of uncontested facts; (b) exhibit lists and any objections to exhibits; (c) witness lists and any objections to witnesses; (d) a list of depositions to be submitted; and (e) proposed findings of facts and conclusions of law with legal citations.
IT IS THEREFORE ORDERED that petitioners' motion to expand the record is granted. Respondents' motion for summary judgment is denied. Petitioners' motion for summary judgment is denied. In open court on July 20, 1999 at 11:00 a.m., the parties shall submit an original and one copy of a topbound, final pretrial order containing the items set forth in this opinion.
NOTES
[1]  Throughout these proceedings, all claims or arguments raised by either petitioner have been treated as being raised on behalf of both petitioners, except in the limited circumstances where factual differences limit the claim or argument to being applicable to only one petitioner.
[2]  The Supreme Court granted certiorari in Bracy's appeal. Collins's appeal was subsequently remanded for further consideration in light of Bracy II. See Collins v. Welborn, 520 U.S. 1272, 117 S.Ct. 2450, 138 L.Ed.2d 209 (1997). Since the Bracy II ruling has been applied to both petitioners, today's opinion refers to "petitioners" (plural).
[3]  Respondents made no Teague argument before the Seventh Circuit; it was raised sua sponte by the court. Before the Supreme Court, respondents argued Teague barred any claim based on an appearance of impropriety. See Respondent's Brief in Bracy II, 1999 WL 129018 *3, 13 (1997). Bracy II makes no mention of Teague and only discusses actual bias as the basis of petitioners' claims.


841 So.2d 693 (2003)
In re GUARDIANSHIP OF Josephine COSIO, an incapacitated person.
Carl W. Cosio, Appellant,
v.
LeRoy H. Merkle, Jr., Appellee.
No. 2D01-5756.
District Court of Appeal of Florida, Second District.
April 11, 2003.
Carl W. Cosio, pro se.
LeRoy H. Merkle, Jr., of LeRoy H. Merkle, Jr., P.A., Tampa, for Appellee.
NORTHCUTT, Judge.
The order under review sealed Carl Cosio's response to his former attorney's motion to withdraw as his counsel. We reverse.
*694 While the court in this guardianship proceeding was considering the guardian's petition for compensation and attorney's fees filed through her counsel, LeRoy Merkle, Cosio's counsel, George Kickliter, filed a motion to withdraw from Cosio's representation. In turn, Cosio filed a lengthy response that disparaged his counsel, the guardian's counsel, and several members of the judiciary. The guardian moved to strike the response. Following a hearing, the court instead ordered the response sealed.
Under certain circumstances, a court may exclude the public from its proceedings, but such authority must be cautiously exercised. News-Press Publ'g Co. v. State, 345 So.2d 865, 867 (Fla. 2d DCA 1977) (citation omitted). Court records may be sealed only for compelling reasons, which should be set forth by the court in order to facilitate review. Id. Access to court records may be restricted to protect the interests of litigants only after a showing that the following three-prong test has been met: (1) the measure limiting or denying access (closure or sealing of records or both) is necessary to prevent a serious and imminent threat to the administration of justice; (2) no less restrictive alternative measures are available which would mitigate the danger; and (3) the measure being considered will in fact achieve the court's protective purpose. Bundy v. State, 455 So.2d 330, 337 (Fla.1984).
The order in this case contains no findings, nor does the record generally, that would permit us to determine the propriety of the order. Therefore, we reverse and remand for further consideration of the motion to strike. If the court again determines that Cosio's filing should be sealed, it shall enter written findings specifying its reasons for such.
Reversed and remanded with directions.
SILBERMAN, J., and THREADGILL, EDWARD F. (Senior) Judge, concur.


                   United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 14-2313
                           ___________________________

AVR Communications, Ltd., an Israeli corporation; Sonovation, Inc., a Minnesota corporation

                         lllllllllllllllllllllPetitioners - Appellees

                                             v.

American Hearing Systems, Inc., doing business as Interton, Inc., a Minnesota corporation

                        lllllllllllllllllllllRespondent - Appellant
                                         ____________

                      Appeal from United States District Court
                     for the District of Minnesota - Minneapolis
                                    ____________

                             Submitted: February 12, 2015
                                 Filed: July 14, 2015
                                   ____________

Before BYE, BEAM, and BENTON, Circuit Judges.
                           ____________

BYE, Circuit Judge.

      American Hearing Systems, Inc., doing business as Interton, Inc. (Interton),
challenges an order of the district court1 granting the petition of AVR
Communications, Ltd. (AVR) to confirm a foreign arbitration award under the

       1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the
Convention), June 10, 1958, 21 U.S.T. 2517, implemented at 9 U.S.C. §§ 201-208.
We affirm.

                                            I

         AVR is an Israeli corporation based in Israel. Interton is a Minnesota
corporation based in Minnesota. Both companies are in the business of producing and
selling hearing aids and hearing aid technology. In 2004, the two companies entered
into a written Investment Agreement which gave Interton a seat on AVR's Board of
Directors as well as a twenty percent interest in AVR. During the negotiations that
led to the Investment Agreement, the contemplated business relationship between the
parties included discussions of these two aspects: (1) integrating AVR's DFC
technology into Interton's products, and (2) Interton's purchase of AVR's W.C.
components for use in wireless FM Cross products. As part of the Investment
Agreement, Interton paid $412,000 to AVR dedicated to research and development
projects for wireless FM communications and digital signal processing. The
Investment Agreement stated it was "[t]he parties' intention . . . that Interton will
acquire from [AVR] products deriving from such R & D projects." Appendix at 19.
According to AVR, the R & D projects referred to in the Investment Agreement
included the DFC technology and the W.C. components.

       The Investment Agreement also incorporated by reference certain terms from
a Stock Purchase Agreement that AVR had previously signed with other investors.
Significantly, two of the incorporated provisions were a "Governing Law" provision
as well as an "Arbitration" provision. Both of the incorporated provisions indicated
the Investment Agreement would be governed by and construed in accordance with
the laws of the State of Israel. In addition, the Arbitration provision stated as follows:

                                           -2-
      Any dispute between the parties relating to (or arising out of) the
      provisions of this Agreement or any of its Exhibits will be referred
      exclusively to the decision of a single arbitrator appointed by mutual
      consent, and failing such consent within 10 days from the date on which
      an affected party first requested arbitration - the Arbitrator will be
      appointed by the President of the Israel Bar Association. The Arbitrator
      will be bound by Israeli substantive law but will not be bound by the
      rules of evidence or the rules of civil procedure. The Arbitrator will be
      required to provide the grounds for his ruling in writing.

      The competent court will have such supplementary jurisdiction for all
      issues arising and/or relating to the Arbitration as is provided by the
      Arbitration Law of 1968, and/or may be necessary to resolve such
      dispute.

Id. at 64 (emphasis added).

       Subsequent to signing the Investment Agreement, various disputes arose
between the parties which included disputes about Interton's purchase of W.C.
components and the integration of DFC technology into Interton's products. In March
2007, AVR commenced an arbitration proceeding in Israel against Interton asserting
a number of claims relating to the Investment Agreement, including claims concerning
the integration of the DFC technology and the purchase of W.C. components.

       Interton retained counsel and participated in the Israeli arbitration, but had a
more limited view of the scope of the arbitration than did AVR. Interton believed the
disputes over the integration of the DFC technology and the purchase of W.C.
components were separate and apart from the other disputes involving the Investment
Agreement, and therefore were not subject to the incorporated-by-reference
Arbitration provision. Interton objected to the inclusion of the DFC and W.C. claims
in the arbitration proceeding, and moved an Israeli district court to limit the scope of
the arbitration so as to exclude those two specific claims.

                                          -3-
       The Israeli district court rejected Interton's objection. Interton asked the
Supreme Court of Israel to review the decision. The Supreme Court of Israel also
rejected Interton's objection. Focusing on the "relating to (or arising out of)" language
in the Arbitration provision, the Supreme Court decided the "arguments concerning
conduct of negotiations prior to the engagement in the Investment Agreement" related
to or arose out of the Investment Agreement, and thus were within the scope of the
Arbitration provision. Id. at 83. As a consequence, the Supreme Court held "the
causes of action that are specified in the Statement of Claim submitted by [AVR]
against [Interton] should all be heard as part of an arbitration between the parties." Id.
at 82. Of course, the causes of action specified in AVR's Statement of Claim included
the DFC and W.C. claims.

       After a lengthy period (nearly four years) of arbitration proceedings, an Israeli
arbitrator ultimately found in favor of AVR on its claim regarding the DFC
technology and awarded $2,175,000 on that claim. The arbitrator also found in AVR's
favor on the claim regarding the W.C. components and awarded $500,000 on that
claim. In addition, the arbitrator awarded one million Israeli New Shekels in fees and
expenses.

       Interton moved to revoke the arbitrator's award in an Israeli district court,
challenging the arbitrator's reasoning and his handling of certain evidentiary issues.
Interton failed to deposit a $1 million guarantee that the courts had ordered, however,
and the Israeli district court summarily rejected the motion to revoke and entered
judgment on the arbitration award. When Interton appealed the judgment, the
Supreme Court of Israel denied the appeal and affirmed the arbitrator's award.

       One week after the arbitrator's award became final in Israel, in accordance with
the Convention, AVR petitioned the federal district court asking it to recognize and
enforce the Israeli arbitration award in the United States. Interton opposed the
petition, arguing in part that the specific disputes regarding the DFC technology and

                                           -4-
the W.C. components fell outside the scope of the Investment Agreement arbitration
clause.

       The district court granted AVR's petition and confirmed the arbitration award.
The district court held Interton agreed to arbitrate all disputes "relating to (or arising
from" the Investment Agreement in Israel. The district court further determined
Interton had agreed the scope of the arbitration clause would itself be determined by
the Israeli courts, in accordance with Israeli law, and the Israeli courts determined the
DFC and W.C. disputes fell within the scope of the arbitration clause. The district
court therefore determined it was impermissible under the Convention to allow
Interton to relitigate the issue of the scope of the arbitration clause in an American
court.

       Interton filed a timely appeal. On appeal, Interton argues the district court
lacked subject matter jurisdiction under the Convention, and renews its contention that
the specific disputes regarding the DFC technology and W.C. components fell outside
the scope of the arbitration clause in the Investment Agreement.

                                            II

      Interton first argues the district court lacked subject matter jurisdiction to
enforce AVR's petition. "The existence of subject-matter jurisdiction is a question of
law that this court reviews de novo." ABF Freight Sys., Inc. v. Int'l Bhd. of
Teamsters, 645 F.3d 954, 958 (8th Cir. 2011).

       Interton contends the district court lacked subject matter jurisdiction because
there was no "agreement in writing" to arbitrate the disputes over the DFC technology
and W.C. components. Interton relies upon the Eleventh Circuit's decision in Czarina,
L.L.C v. W.F Poe Syndicate, 358 F.3d 1286 (11th Cir. 2004). Czarina interpreted
certain provisions in the Convention as imposing a threshold jurisdictional

                                           -5-
requirement upon a party seeking confirmation of a foreign arbitration award to show
the award was entered pursuant to a written arbitration agreement, i.e., an "agreement-
in-writing" requirement. See id. at 1290-93. Czarina is factually dissimilar from our
case, however, because it is undisputed that Interton and AVR had a written
arbitration agreement and the issue is simply whether the agreement covers the
specific claims involved; in Czarina there was no written agreement, only sample
wording the party seeking confirmation of an award asserted the other party had
agreed to. Id. at 1293.

       In a case which is factually similar to ours, where the party seeking
confirmation of an award clearly described a written agreement and the issue was
simply whether a particular party was subject to the agreement, the Second Circuit
rejected the holding of Czarina. See Sarhank Grp. v. Oracle Corp., 404 F.3d 657, 660
n.2 (2d Cir. 2005). The Second Circuit discussed whether some cases (including
Czarina) had conflated questions that were actually merits-based (i.e., whether the
parties had agreed to arbitrate a particular dispute) into questions of subject matter
jurisdiction. See id. at 660 & n.2.

       Even assuming arguendo the Convention imposes certain threshold
jurisdictional prerequisites upon a party seeking confirmation of an award, AVR
satisfied those requirements by providing a certified copy of the arbitration agreement
with its petition. See Convention, Art. IV, 21 U.S.T. 2517 ("To obtain the recognition
and enforcement [of a foreign arbitration award], the party applying for recognition
and enforcement shall, at the time of the application, supply: . . . [t]he original
agreement referred to in article II [i.e., the 'agreement in writing'] or a duly certified
copy thereof."). The issue before the district court was not whether there was a
written agreement, but rather whether it covered the disputes involving the DFC
technology and W.C. components. We therefore reject Interton's contention that the
district court lacked subject matter jurisdiction.

                                           -6-
      As an alternative to its jurisdictional argument, Interton argues the district court
was obligated to conduct an independent analysis to determine whether the disputes
involving the DFC technology and W.C. components fell within the scope of the
written arbitration agreement. Interton contends the district court therefore erred
when it deferred to the Israeli courts, which had concluded those disputes related to
or arose out of the Investment Agreement and thus were within the scope of the
written arbitration clause. We reject Interton's alternative argument as well.

       Setting Interton's semantics aside, the only defense it has to confirmation of
AVR's award is its contention that the disputes involving the DFC technology and
W.C. components do not fall within the scope of the Investment Agreement's written
arbitration clause. That exact issue was already squarely addressed and rejected by
an Israeli district court and the Supreme Court of Israel.

       In general, the doctrine of res judicata, or claim preclusion, prevents a party
from "relitigating claims and issues that have been previously adjudicated." Black
Clawson Co. v. Kroenert Corp., 245 F.3d 759, 763 (8th Cir. 2001). This doctrine may
apply even when the claim or issue involved was first litigated in a foreign court. See
id. ("Foreign adjudication of an issue may preclude its relitigation in our courts.").

      A foreign judgment is recognized, enforced, and given preclusive effect
      by a court of this country if the court finds five factors to be present.
      Shen v. Leo A. Daly Co., 222 F.3d 472, 476 (8th Cir. 2000) (citing
      Hilton v. Guyot, 159 U.S. 113 (1895)). Previously litigated claims
      should not be retried if the reviewing court finds that the foreign court
      provided a full and fair trial of the issues in a court of competent
      jurisdiction, the foreign forum ensured the impartial administration of
      justice, the foreign forum ensured that the trial was conducted without
      prejudice or fraud, the foreign court had proper jurisdiction over the
      parties, and the foreign judgment does not violate public policy. Shen,
      222 F.3d at 476 (citing Hilton, 159 U.S. at 202–03).

                                           -7-
Id.

       In contesting the preclusive effect of the Israeli court judgments, Interton does
not seriously contend the five factors discussed in Black Clawson and Shen are not
present here. Instead, Interton merely reverts back to its contention that there was no
written agreement to arbitrate the disputes involving the DFC technology and W.C.
components. See Reply Br. at 8. We are unpersuaded by Interton's circular reasoning.
We conclude the five factors necessary to give the Israeli court judgments preclusive
effect are present here. As a consequence, the district court did not err in granting
AVR's petition to confirm the foreign arbitration award.

                                          III

      We affirm the district court.
                      ______________________________

                                          -8-


487 F.2d 438
1 O.S.H. Cas.(BNA) 1372
Peter J. BRENNAN, Secretary of Labor, Petitioner,v.OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION andInterstate Glass Co., Respondents.
No. 73-1029.
United States Court of Appeals,Eighth Circuit.
Submitted Sept. 14, 1973.Decided Oct. 26, 1973.

Harlington Wood, Jr., Asst. Atty. Gen., and Walter H. Fleischer, and Jean A. Staudt, Attys., Dept. of Justice, Washington, D. C., for petitioner.
William J. Koenigsdorf, Kansas City, Mo., for respondent, Interstate Glass Co.
Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
WEBSTER, Circuit Judge.

1
In this petition the Secretary of Labor seeks judicial review of an order of the Occupational Safety and Health Review Commission in which the Commission, while upholding the Secretary's citations for violations of the Act, nonetheless vacated the proposed penalties for such citations.  We affirm the order of the Commission.

2
The Occupational Safety and Health Act of 1970, now popularly known as "OSHA", is of recent origin and will have substantial impact upon American Industry.  The Secretary of Labor is charged with its enforcement, and in this action he seeks to limit the power of the Commission to modify penalties proposed by him which are within lawful limits.  Because this appears to be a case of first impression, and one which tests in part the respective roles of the Secretary and the Commission, some initial explication of OSHA is appropriate.

3
"OSHA"

4
The Act was adopted in 1970 and became effective on April 28, 1971.  The bill as passed is a compromise between two competing bills that were submitted both to the House and to the Senate.  One bill was administration-backed and the other was strongly supported by organized labor.  Although the difference in the two bills primarily involved whether both rule-making and enforcement powers should be located in the same agency, it is clear that both sides favored a bill which would establish a comprehensive program that would substantially reduce the large number of job-related deaths, injuries and health hazards which have existed.1  It is estimated that 4.1 million businesses and 57 million employees are affected.2

5
The Act provides for the development of a "laundry-list" of violations.  Companies are subject to periodic compliance inspections which are carried out at random either upon complaint or upon the inspector's own initiative.3  Advance notice of an inspection is prohibited, and violators of this provision are subject to criminal sanctions.4  Violations may be either of standards promulgated by the Secretary5 or of the "general duty" provision,6 a catch-all provision intended to supplement the standards formulated by the Secretary.

6
A violation is "serious" if there is a possibility of an accident and a substantial probability that death or serious physical injury would result.7  Under the Act, a penalty may be imposed of up to $1,000 for a non-serious violation.8  Upon receiving notice from the Secretary of the citations and proposed penalties, the employer has 15 days to contest either the citation or the proposed penalty or both9 by notifying the Secretary who transmits the information to the Commission.  The Commission is an independent adjudicatory agency established under the Act, 29 U.S.C. Sec. 661.  The Commission is authorized to conduct hearings under Sec. 659(c), which hearings are conducted under Sec. 5 of the Administrative Procedure Act, 5 U.S.C. Sec. 554.10

7
The Commission's hearing is presided over by a single Commission Judge who writes an opinion which is then subject to review by the entire three-man Commission at its discretion.  After 30 days, if no other member requests a review, his order becomes final and the order of the Commission.

FACTS

8
On March 28, 1972, a compliance officer of the United States Department of Labor conducted a compliance investigation of respondent Interstate Glass Company, Lincoln, Nebraska.  As a result of conditions uncovered during this investigation, Interstate was cited by the Secretary of Labor on March 29, 1972, for seven "non-serious" violations.11  The fines totalled $375.00.  The Company was ordered to abate item #3 immediately and was given until April 7, 1972, to abate the remaining six.  Thereafter, the Secretary withdrew items 6 and 7 and the penalty was reduced to $225.

9
On April 13, 1972, respondent advised the Secretary that all five remaining violations were abated and that it wished to contest the citations and proposed penalties.  This notice of contest was properly transmitted to the Secretary, who thereupon transmitted it to the Commission.  The Secretary then submitted to the Commission a complaint under 29 CFR Sec. 2200.7(d) setting forth the substance and penalties of the five violations.  The respondent company answered, admitting a violation as to items 3 and 4 but denying the remaining allegations (items 1, 2, 5).

10
The Commission Judge, after hearing, determined that all five proposed violations did exist as set forth in the citation and were supported by the evidence.  However, he vacated all five proposed penalties on the grounds that employees had never complained of the conditions, the employer was either unaware that the conditions were violations or had no knowledge of them, and the employer exercised diligence and good faith in abating the hazards immediately after the citation.  Consequently, he concluded, "it will serve no useful purpose of the Act to levy these small fines under the total circumstances involved in this case."  It is the vacation of the proposed penalties from which the Secretary appeals.12

11
* SCOPE OF ADMINISTRATIVE REVIEW

12
The Commission is granted the power to review either the citation or the proposed penalty or both under 29 U.S.C. Sec. 659(a) and (c).  The scope of such review is set forth in Sec. 659(c):

13
"The Commission shall thereafter [after hearing] issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty or directing other appropriate relief, and such order shall become final thirty days after its issuance."  (emphasis added)

14
Some writers have interpreted this section of the Act as granting the Commission final authority to affirm, modify, or vacate penalties.13  The Commission has acted upon a similar view of its power. "As of May 16, 1972, penalties proposed by the Department of Labor had been modified in 58 percent of the cases appealed to the Review Commission.  In 43 percent of the cases, the penalty was reduced; in 15 percent, it was increased."14  In other instances the Commission has vacated the penalties but not the violations.15

15
It is the position of the Secretary-Petitioner that by vacating all five proposed penalties, the Commission abused its discretion and frustrated the purposes of the Act.  This assertion is based on a well-reasoned argument that such action frustrates the purpose of OSHA, which relies primarily on voluntary compliance, by nullifying the employer's incentive in self-policing and self-enforcement.  Notwithstanding the validity of this argument, the threshold question is whether the review by the Commission is de novo.

16
Prior to the Commission's review, the Secretary had already taken the "circumstances" into consideration in setting the proposed penalties.  As each violation was categorized as "non-serious", a fine not exceeding $1,000.00 was authorized, although not required, for each violation. 29 U.S.C. Sec. 666(c).  After placing each violation in a particular category depending upon its gravity, the Secretary reduced the five unadjusted penalties (1) 20% for the good faith of employer, (2) 10% for having less than 20 employees and (3) 20% for having no history of past violations.  The adjusted penalties were further reduced 50% because all violations were abated within the period specified.  This method of calculating proposed penalties is the standard procedure prescribed by the Secretary's published Compliance Operations Manual.  It must be assumed that the Secretary's complaint is the Commission's failure to uphold his procedures for imposing penalties when the Commission affirms the Secretary's findings of violations.  Obviously, the Secretary does not want his imposed penalties continually contested with the hope or expectation of the employer that the Commission will reduce or vacate them.

17
The Secretary's argument, however, ignores the clear statutory language.  His imposition of penalty is denominated a "proposed penalty".  29 U.S.C. Sec. 659(a).  This proposed penalty becomes final only if the employer accepts it or does not "contest" it, in which case it becomes a final order not subject to review by any court or agency. 29 U.S.C. Sec. 659(a).  If, on the other hand, the employer contests the order and proposed penalty, the Commission acts de novo.16  Moreover, 29 U.S.C. Sec. 666(i) provides as follows:

18
"The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations."

19
The Congressional intent is thus plainly manifested that the Commission shall be the final arbiter of penalties if the Secretary's proposals are contested and that, in such a case, the Secretary's proposals merely become advisory.  We find no authority to the contrary.  In one recent Fifth Circuit opinion, the court vacated an order of the Commission setting aside proposed penalties and reinstated the Secretary's proposed penalties.  Brennan v. Occupational Safety and Health Review Commission and Brent Towing Co., Inc., 481 F.2d 619 (5th Cir. 1973).  The question presented there was whether a particular letter constituted a "notice of contest".  The Commission determined that it did and vacated the proposed penalties because the Secretary had not forwarded the letter within the required time period.  The respondent-employer conceded its liability and indicated a desire not to proceed further.  The court refused to decide the issue presented by the Secretary and the Commission because the "chief party in interest has long since . . . declined to remain the focal center for an administrative whirlwind of such minor proportions."

SCOPE OF JUDICIAL REVIEW

20
29 U.S.C. Sec. 660(a) authorizes review in the Court of Appeals for "any person adversely affected or aggrieved" and Sec. 660(b) authorizes review for the Secretary.  Section 660(a) provides in pertinent part:

21
"Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. * * *  The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive."

22
The reviewing court is thus bound to apply the substantial evidence test to the Commission's findings of fact.  The assessment of penalties is not a finding but the exercise of a discretionary grant of power.  And while the court has jurisdiction to review and power to modify, the test of a penalty within the statutory range must be whether the Commission abused its discretion.17

23
In this case, the Commission had discretion to impose a fine of up to $1,000 for each non-serious violation.18  Its order reflected its consideration of the statutory criteria for the appropriateness of penalties.19  We are unable to say from the record before us that the Commission abused its discretion in vacating the proposed penalties.  In so doing, we do not adopt the position of the Commission that "[r]elatively minor monetary penalties do little" to "obtain compliance with [the Act's] requirements in order to insure a safe and healthful work place." 1 O.S.H.R. 1198 (May 18, 1972).  Nor do we think that the self-compliance aspects of the Act can only be enforced by mandatory penalties, as implied by the Secretary.  The Act calls for the exercise of discretion, and our review is not to be directed to what policy best furthers the objectives of the Act, but rather to whether the statutory discretion has in fact been exercised and has not been abused.

24
Affirmed.

1
 See Moran, A Critique of the Occupational Safety and Health Act of 1970, 67 Nw.U.L.Rev. 200, 200-05 (1972)
The annual figures reflect that there are over 14,000 deaths and two million injuries caused by industrial accidents.  The legislative history of OSHA may be found at 1970 U.S.Code Cong. & Admin.News, 91st Cong., 2d Sess., at 1852.

2
 Spann, The New Occupational Safety and Health Act, 58 A.B.A.J. 255 (March 1972)

3
 29 U.S.C. Sec. 657

4
 See 29 U.S.C. Sec. 666(f)

5
 29 U.S.C. Sec. 655

6
 29 U.S.C. Sec. 654

7
 See 29 U.S.C. Sec. 666(j).  For a discussion of serious vs. non-serious violations, see Standard Glass and Supply Co., CCH, Employment & Safety & Health Guide, Vol. 2 p 15,689 at 20,984 (April 27, 1973)

8
 29 U.S.C. Sec. 666(c)

9
 29 U.S.C. Sec. 659(a) and (c)

10
 The Rules of Procedure before the Commission are set out in 29 CFR Part 2200 (1972)

11
 The seven non-serious violations cited, authority for such citations and the fines proposed by the Secretary were as follows:
Violation                                       CFR Section              Amount
                                                                             of
                                                                           Fine
(1) Excessive play in forklift                  [1910.178(p)(1)]           $ 25
(2) Inaccessible electrical panel controlling   [1910.310(i)]                25
  plant's heat and power tools
(3) Flammable liquid stored in open containers  [1910.106(e)(2)(ii)]        125
(4) Power saw with missing ground prong         [1910.314(d)(4)(iii)-        25
                                                  (c)]
(5) Defective ladder                            [1910.29(d)(1)(x)]           25
(6) Loading area not protected with required    [1910.23(c)(1)]              75
  guardrails
(7) Insufficient fire extinguishers             [1910.157(c)(1)(iv)]         75

12
 Jurisdiction for an appeal to the United States Court of Appeals by the Secretary is granted in 29 U.S.C. Sec. 630(b)

13
 E. g., Note, The Occupational Safety and Health Act of 1970: Some Unresolved Issues and Potential Problems, 41 Geo.Wash.L.Rev. 304, 321 n. 108 (1972)

14
 1 O.S.H.R. 1197 (May 18, 1972) cited in 41 Geo.Wash.L.Rev. at 321 n. 108, supra note 13.  For an example of a reduced penalty, see Apex Paper Co., CCH, Employment & Safety & Health Guide, Vol. 2 p 61,249 at 21,210 (June 29, 1973) (reduced because of low gravity and first offense).  For an example of an increased penalty, see Pollard, Inc., Corp., CCH, Employment & Safety & Health Guide, Vol. 2 p 16,260 at 21,217 (July 5, 1973) (Secretary's finding of good faith was unwarranted)

15
 E. g., Enterprise Manufacturing & Supply Co., CCH Employment & Safety & Health Guide, Vol. 2 p 16,247 at 21,210 (June 29, 1973) (penalties would not further the aims of the Act)

16
 29 U.S.C. Sec. 659(c).  Note the limitations on judicial review at Sec. 660, discussed, infra

17
 See 5 U.S.C. Sec. 706(2)(A).  In Butz v. Grover Livestock Commission, Inc., 411 U.S. 182, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973), a a Judicial Officer reduced a penalty assessed by the Secretary of Labor under the Packers and Stockyards Act, 7 U.S.C. Sec. 181 et seq. Upon review, a panel of this circuit vacated a suspension penalty which it found to be "unwarranted and without justification in fact." 454 F.2d 109, 115 (8th Cir. 1972).  The Supreme Court reversed, holding the record substantiated the findings of the Judicial Officer, and that the court's consideration of such factors as "damaging publicity" exceeded its function of judicial review.  It observed that the standard of review should conform to the "fundamental principle . . . that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy 'the relation of remedy to policy is peculiarly a matter for administrative competence.'  American Power Co. v. S.E.C., 329 U.S. 90, 112, 67 S.Ct. 133, 91 L.Ed. 103 (1946)."  411 U.S. at 185, 93 S.Ct. at 1458

18
 29 U.S.C. Sec. 659(c), Sec. 666(i).  Note that imposition of penalties for serious violations is mandatory. 29 U.S.C. Sec. 666(b)

19
 "Good faith", one of the criteria, can be a broad tent.  Respondent Interstate Glass Co. had urged before the Commission that certain defects in its equipment had not been reported to the company by employees using the equipment.  A "willful" violation exposes an employer to higher penalties. 29 U.S.C. Sec. 666(a).  Non-serious violations need not be supported by evidence of knowledge. "Good faith" therefore contemplates the post-inspection performance of the employer in acting to correct the defect.  It does not appear from its order that the Commission adopted or applied the erroneous standard urged by the employer


                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE

                     STATE OF ARIZONA, Respondent,

                                        v.

               JOSE TRINIDAD CECENA-COTA, Petitioner.

                         No. 1 CA-CR 13-0876 PRPC
                              FILED 5-21-2015

    Petition for Review from the Superior Court in Maricopa County
                         No. CR2012-124952-001
                 The Honorable Roger E. Brodman, Judge

                  REVIEW GRANTED; RELIEF DENIED

                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Jose Trinidad Cecena-Cota, Douglas
Petitioner
                          STATE v. CECENA-COTA
                            Decision of the Court

                        MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.

J O N E S, Judge:

¶1             Jose Trinidad Cecena-Cota petitions this Court for review of
the trial court’s dismissal of his petition for post-conviction relief. We have
considered the petition for review, and, for the reasons stated, grant review
and deny relief.

¶2             Cecena-Cota pleaded guilty to promoting prison contraband
and misconduct involving weapons, and the trial court sentenced him to
9.25 years’ imprisonment for the former charge, and two years’ probation
for the latter. Cecena-Cota filed a pro se petition for post-conviction relief
of-right after his counsel found no colorable claim for relief. The trial court
summarily dismissed the petition, and Cecena-Cota now seeks review. We
have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

¶3           Cecena-Cota argues there was an insufficient factual basis to
support his guilty plea to the offense of promoting prison contraband. He
further argues his trial counsel was ineffective by advising him to just
answer “yes” to all of the trial court’s questions at the change-of-plea
hearing, when counsel knew there was an insufficient factual basis to
support the plea, and that he would have to lie to the court to do so.

¶4              We deny relief. The factual basis to support the plea need
only establish strong evidence of guilt, not guilt beyond a reasonable doubt.
State v. Salinas, 181 Ariz. 104, 106 (1994) (citing State v. Wallace, 151 Ariz. 362,
365 (1986)). As charged here, a person commits promoting prison
contraband if the person “knowingly tak[es] contraband into a correctional
facility or the grounds of a correctional facility.” Ariz. Rev. Stat. § 13-
2505(A)(1) (2015). At the change-of-plea hearing, Cecena-Cota admitted
that when he was taken to the jail for booking on the weapons misconduct
charge, he entered the facility knowing he had methamphetamine hidden
in the hat he was wearing. This admission is sufficient to support Cecena-
Cota’s guilty plea to promoting prison contraband.

¶5          Because there was a sufficient factual basis for the plea,
Cecena-Cota has failed to present a colorable claim that his counsel was

                                         2
                         STATE v. CECENA-COTA
                           Decision of the Court

ineffective. His claim is further undercut by the fact that, in addition to
admitting the factual basis, Cecena-Cota told the trial court he agreed to
everything in the plea agreement, no one forced him to enter into the
agreement, no one made any promises or threats to convince him to plead
guilty, and he entered the plea agreement of his own free will.

¶6             While the petition for review presents an additional issue
regarding the validity of State v. Hamilton, 142 Ariz. 91 (1984), Cecena-Cota
did not raise this issue in the petition for post-conviction relief he filed in
the trial court. A petitioner may not present issues raised for the first time
in a petition for review. See State v. Ramirez, 126 Ariz. 464, 467 (App. 1980);
Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶7            Accordingly, we grant review and deny relief.

                                :ama

                                       3


116 Cal.App.2d 106 (1953)
TILDA S. ERICSON et al., Appellants,
v.
MRS. L. C. PETERSEN, Respondent.
Civ. No. 4606.
California Court of Appeals. Fourth Dist.
Feb. 16, 1953.
 Wild, Carlson & Reeve and Robert M. Barnard for Appellants.
 Lawrence W. Young and James M. Thuesen for Respondent.
 GRIFFIN, J.
 Plaintiffs and appellants, husband and wife, brought this action for damages, alleging that Mrs. Ericson suffered injury while a patient in a sanitarium operated by defendant and respondent. Defendant denied negligence and alleged contributory negligence on the part of the plaintiffs. The court made detailed findings, and found in favor of defendant on all issues. Plaintiffs appealed and claim mainly that the evidence is insufficient to justify the finding that *108 defendant was not negligent and that plaintiff Mrs. Ericson was guilty of contributory negligence which was the proximate cause of her injury.
 The evidence shows that she was about 74 years of age and had suffered a stroke in 1949, leaving her left side affected. In March, 1950, she fell while in her home and broke her leg. She has been practically bedridden ever since. She was in the Community Hospital and later in the Collins Rest Home, until March 27, 1950. Mr. Ericson investigated defendant's licensed rest home, which contained 44 beds. Sixteen of the patients were bed patients. In the daytime eight nurses and an orderly were on duty. On the night shift there were as high as six nurses part time. Mrs. Ericson was brought to the home on May 27, 1950. The rate for her ordinary care was $150 per month, which was paid in advance. She was confined to a regular hospital bed. Later, side-rails, about 19 inches in height such as are ordinarily used in hospitals, were securely attached to the bed. The outside, or highest rail, was attached by wire covered with a stocking. The inside or lower rail near the wall, was attached by a clamp at the head and foot of the bed, and was tied to the bed by means of a shoe lace in a bow knot, with two hook clamps so that it could be let down when the nurse was making the bed or bathing the patient. The patient was "confused" and, even in the other home and hospital, continually expressed a desire to return to her home. Mr. Ericson visited with his wife on several occasions and expressed his entire satisfaction with the care given her, although defendant indicated to him that the patient showed considerable nervousness during the night and she suggested special nurse's care. Apparently Mr. Ericson was satisfied with the general care given to the patient and knew that a nurse would not be with his wife at all times. Plaintiff's attending physician never indicated that any restraint, other than the side-rails, should be considered to keep the patient from climbing out of bed. Two other patients were in the same room, which room was nearest the nurse's call desk. Each patient had access to a call bell.
 About 4:45 p. m. on June 1st, a nurse prepared the patient for dinner. Both rails were up and the bed was against the wall. The nurse rolled the mattress up in a reclining position and placed the tray on the bed preparatory to feeding her. Several other nurses testified that just previous to *109 this time the rails were up and were securely clamped and tied. About 5 p. m., after checking the rails and general conditions, the nurse momentarily left the room to look over a chart at the desk. Soon thereafter, she heard a commotion and immediately returned to the bedroom and saw Mrs. Ericson sitting on the floor pushing the bed away with her foot. At that time the inside rail was down and the leather shoe lace was untied and on the floor. The bed was about 3 feet from the wall. The doctor and the patient's husband were called and it was discovered that the patient had a fractured hip bone.
 The husband and his daughter testified to a little different version of the position of the one rail and the bed clothing when they arrived several hours later. The case was heard by the court without a jury.
 It is plaintiffs' contention that under the evidence they were entitled to the application of the doctrine of res ipsa loquitur, and if applied, the court was duty bound to find in favor of plaintiffs since an inference of negligence arose by reason of its application, and since any explanation given by defendant as to the cause of the injury was physically impossible, and since Mrs. Ericson was paralyzed, the side-rail could not have been removed or let down by her, and therefore it must have been left in that position by the attending nurse when she left the room. It is then argued that it is the duty of a hospital to use reasonable care and diligence in safeguarding a patient committed to its charge, and such diligence is to be measured by the capacity of the patient to take care of herself, citing such cases as Thomas v. Seaside Memorial Hospital, 80 Cal.App.2d 841 [183 P.2d 288]; Valentin v. La Societe Francaise, 76 Cal.App.2d 1 [172 P.2d 359]; Meyer v. McNutt Hospital, 173 Cal. 156 [159 P. 436]; Timbrell v. Suburban Hospital, Inc., 4 Cal.2d 68 [47 P.2d 737]; and Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258]. The cases relied upon by plaintiffs are factually dissimilar to those in the instant case.
 [1] The applicability of the doctrine of res ipsa loquitur is fully discussed in Ybarra v. Spangard, supra, and it is there said:
 "The doctrine of res ipsa loquitur has three conditions: '(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive *110 control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' "
 [2] It further recites that: " 'the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.' " (Citing cases.)
 [3] From the evidence, viewed in a light most favorable to the defendant, as we must, it appears that the proximate cause of the injury was due to the action of Mrs. Ericson. The chief evidence of the true cause was accessible to the injured person. Therefore, the doctrine would not apply. (Black v. Partridge, 115 Cal.App.2d 639, 649 [252 P.2d 760].)
 [4] Plaintiffs endeavor to avoid the effect of this evidence by concluding that Mrs. Ericson, by reason of her mental condition, was unable to explain the happening of the accident. The court made a specific finding that at the time plaintiff got out of the bed she was mentally normal and knew the significance of her own acts. The evidence on this question is various.
 Plaintiff's attending physician for some years, testified that in March, 1950, she had a determined increase of mental confusion and that in June, 1950, she was still "mentally confused"; that on the day of trial, December 3, 1951, she was greatly improved as to her mental condition, but could not come to court to testify because of her mental incompetency; that what he meant by "incompetent" was that she was not able to take care of her affairs in a rational manner.
 The defendant and the nurse testified generally that when Mrs. Ericson was in the home her mental condition was good; that she carried on a good conversation but that her chief subject of complaint was that she was tired of hospitals and wanted to get out of bed and go home.
 Plaintiffs' daughter testified that on May 30th and 31st she went to the rest home and carried on a conversation with her mother; that she talked about the past most of the time but could answer intelligently questions asked of her in a conversation. The husband testified his wife was not confused all the time; that she intelligently answered some of his questions and others she did not; that his wife was "not insane," just "mentally confused" part of the time. *111
 Plaintiffs argue that the testimony of the attending physician should be accepted as true and the other testimony as to her sanity disregarded. They lay considerable stress upon a notation made by defendant written on a refund check bearing the word "mental." Defendant accounts for this by saying that she meant "confused" and the notation was placed thereon because the bookkeeper always wanted to know the reason for the refund. It appears from the evidence that the question of plaintiff's mental capacity was a question of fact for the trial court to determine. (Rose v. Melody Lane, 39 Cal.2d 481, 487 [247 P.2d 335].)
 Defendant produced in evidence certain rules and requirements of the State Department of Health pertaining to rest homes, and in particular article 9, section 246(a) thereof, which provides:
 "Restraints. (1) General. Restraints may be applied only when they are necessary to prevent injury to the patient or others, shall be used only when alternative measures are not sufficient to accomplish these purposes, and on written order of the physician."
 [5] There is sufficient evidence supporting the finding that neither defendant nor her agents were negligent at the time of the claimed injury, even if it could be said that the doctrine of res ipsa loquitur was applicable to the facts presented. Only a conflict in the evidence would arise for the determination of the trial judge. The finding is supported by substantial evidence and this court is not authorized to reweigh evidence. (Lockard v. Matlaw, 140 Cal.App. 640 [35 P.2d 591]; Burton v. Los Angeles Ry. Corp., 79 Cal.App.2d 605 [180 P.2d 367].)
 In Gray v. Carter, 100 Cal.App.2d 642 [224 P.2d 28], this court reversed a judgment for plaintiff and held the evidence was insufficient to support a verdict awarding a sanitarium patient damages as a result of a fall in her room where it appeared that plaintiff, who was suffering from arthritis, received the general care of a sick patient and there was no evidence that any nursing care was expected or contracted for, no indication as to how or why she fell, and no evidence which would support an inference that defendants had any knowledge of any change in plaintiff's mental condition which would have caused them, as reasonable persons, to anticipate that she was likely to fall. Many cases are cited therein supporting the judgment here rendered.
 [6] A final claim is made that another patient was in *112 the room at the time and should have been called by defendant as a witness to show what was the cause of plaintiff's fall; that by reason of defendant's failure to call her, it must be inferred that her testimony would have been adverse to defendant, citing section 1963, subdivision 5 of the Code of Civil Procedure. The evidence is that one of the patients in the room with Mrs. Ericson subsequently died and the other was a bed patient at the time. There is no showing that that patient was awake or observed the plaintiff or that she knew anything pertaining to the cause of plaintiff's injury. She was available to plaintiff as a witness, as well as to defendant. There is no showing that defendant willfully suppressed any evidence. Where there was substantial evidence to support the judgment, the effect of any failure on the part of defendant to call a witness was a matter to be considered by the trial court. (Moore v. Spremo, 72 Cal.App.2d 324 [164 P.2d 540].)
 Judgment affirmed.
 Mussell, J., concurred.
 Barnard, P. J., being disqualified, did not participate herein.


193 N.J. Super. 80 (1984)
472 A.2d 168
DOW JONES & COMPANY, INC., PLAINTIFF-APPELLANT,
v.
DIRECTOR, DIVISION OF TAXATION, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued February 21, 1984.
Decided March 2, 1984.
*82 Before Judges BISCHOFF, PETRELLA and BRODY.
Frederick T. Davis, a New York attorney, admitted pro hac vic argued the cause for appellant; Richard J. Pinto appeared on behalf of appellant, (Smith, Stratton, Wise, Heher & Brennan, attorneys).
Martin L. Wheelwright, Deputy Attorney General, argued the cause for respondent (Irwin I. Kimmelman, Attorney General of New Jersey, attorney; James J. Ciancia, Assistant Attorney General, of counsel).
PER CURIAM.
The judgment of the Tax Court under review is affirmed essentially for the reasons express by Judge Conley in his opinion published at 5 N.J. Tax 181 (Tax Ct. 1983).
The following observations are necessary to resolve contentions made by plaintiff in this court which are not covered in the published opinion.
In 1970 and 1971 Dow Jones purchased the printers here involved at a price of approximately $14,000,000 from General Electric. The unit price of the printers was $2,030. Dow Jones paid sales tax on this purchase to the States in which it took delivery of the tickets. Plaintiff has a warehouse in New Jersey and took delivery of many of the machines here and paid a sales tax for the machines delivered and used here as well as on some which were ultimately used in other States.
Plaintiff argues that the imposition of the sales tax on rental agreements constitutes unfair and inequitable double taxation. We disagree. The sales tax is imposed upon retail sales of tangible personal property. N.J.S.A. 54:32B-3(a). A lease of construction equipment has been held to constitute a *83 retail sale within the provisions of N.J.S.A. 54:32B-3(a). Mal Brothers Contracting Co. v. Division of Taxation, 124 N.J. Super. 55 (App.Div. 1973). We see no distinction between a lease of construction equipment and the lease of equipment before us. In response to plaintiff's claim of double taxation the deputy attorney general pointed out that at the time of purchase the plaintiff could have sought an exemption from the sales tax pursuant to N.J.S.A. 54:32B-2(e)(1)(A). Plaintiff alone is responsible for its present predicament.
Plaintiff also argues that it is subject to discriminatory treatment due to the imposition of the tax which places it at an economic disadvantage with respect to its competitors. The factual basis for this argument is as follows. Until the latter part of 1967 plaintiff charged its News Service subscribers without breaking out separate charges for the News Service or the tickers. With the advent of CRTs this practice was changed so that a subscriber to the News Service who did not use a ticker was not charged for one. However, a subscriber who takes the News Service over a CRT is charged $140 per month in addition to the charge for the News Service. This monthly fee has component parts which include charges for the printer, a CRT display fee, the cost of the telephone lines and a service and maintenance charge. Plaintiff's records contained a breakdown, by customer, of the charges for the News Service and for the use of the ticker. The sales tax is not assessed on the News Service.
On the other hand, competitor news services subscribers have the option of using a teleprinter similar to the tickers utilized by the plaintiff. If a subscriber takes the news service but not the teleprinter it pays less than the subscriber who uses the teleprinter. The bill submitted to the subscriber does not break out separate charges for the service and the printer.
In response to this charge of unfair and discriminatory treatment the Attorney General points out that this sales and use tax is a self-executing tax which must be reported and paid by the *84 taxpayer. The defendant does not audit and assess each and every taxpayer, but rather undertakes to audit some taxpayers in accordance with its standard auditing and enforcement procedure. If the auditor consequently finds a deficiency an assessment is made. The fact one taxpayer is subject to an audit and assessment while another similarly situated may not have been, even though subject to the same law, does not constitute discrimination against the audited taxpayer. Nor does it represent approval of the practices of the unaudited taxpayer. In fact, this is probably the first audit conducted of this type of business with respect to the sales and use tax and no conclusion with respect to the propriety of the practice of plaintiff's competitors can fairly be drawn.
Plaintiff further charges that the assessment of a tax on it but not upon its competitors, based on the fortuitous happenstance that plaintiff itemizes its equipment charges while its competitors do not, constitutes the assessment of a sales tax against it despite inapplicability to its competitors which, in effect, is arbitrary discrimination in violation of the First Amendment citing Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983). A short answer to this contention is that the Department has not audited and then ruled that plaintiff's competitors are not liable for the tax. Moreover, the Minneapolis Star and Tribune case is not on point. The use tax there under consideration exempted the first $100,000 of the cost of ink and paper used in a year from the tax and taxed the balance. The result was to tax only 14 of the largest newspapers (out of 388) in the State with the Minneapolis Star and Tribune paying roughly two-thirds of all the tax assessed. The Supreme Court held the tax unconstitutional because it singled out and targeted a small group of newspapers. No such discrimination is apparent here.
Finally, plaintiff asserts the tax as applied is in violation of the First Amendment of the Federal Constitution. This issue was pleaded and listed in the pretrial order. It was not, *85 however, briefed by the plaintiff and not submitted as an issue to the trial court. Dow Jones, supra, 5 N.J. Tax at 185. It is a "general rule of appellate practice that ordinarily no issue will be considered by the reviewing court unless raised and argued below." Deerfield Estates, Inc. v. Twp. of East Brunswick, 60 N.J. 115, 120 (1972). This is true of constitutional issues unless the issue goes to the question of jurisdiction or presents a matter of real public importance. Where both these characteristics are lacking review will normally be denied. Id.
Since this issue, argued for the first time on appeal does not go to the question of jurisdiction or present a matter of real public importance we need not and do not consider it. Steward v. Magnolia, 134 N.J. Super. 312, 316 (App.Div. 1975), certif. den. 68 N.J. 481 (1975).
Affirmed.