State v. Galloway (CA1 4/15/10)

This is a garnishment case. Unless your clients are governed by OSHA, it doesn’t mean much even to your garnishments. It mentions a useful thing about renewing judgments but  wouldn’t really be worth blogging if not for a couple of points that it either shouldn’t have made or should at least have thought through.

An industrial accident occurred on Galloway’s job site. ADOSH issued a citation and notice of penalty. He requested a hearing; the administrative law judge ruled against him. ADOSH filed the citation with the court in April 2003, renewed it by affidavit in February 2007, and garnished Galloway’s employer in September 2008. (Why the State filed  so slowly, renewed so quickly,  then waited so long to enforce is mysterious, but then so is much of what is done by lawyers who can’t be sued.) Galloway objected to garnishment, arguing that ADOSH had no proper judgment. The trial court, in December 2008, found otherwise.

Galloway appealed from a slightly later order. Division One observed in a footnote that appeal “may have been more properly taken from the December . . . order” and since appeal was timely anyway “we also consider this appeal as one from the earlier ruling.” That’s an interesting bit of law: despite what the brief says, the appellate court will pick whichever order is more favorable to the appellant, so long as an appeal from it is timely. It used to be up to the appellant to choose what to appeal and the court didn’t practice law for him if he got it wrong. (The court didn’t really mean that, you say? Then why did the court say it? A reason we scrutinize – and warn against – footnotes is that they are so often filled with the slapdash, the questionable, and the just plain wrong.)

Galloway’s argument was that ADOSH should have filed the ALJ’s decision, not the original citation. But the statute (28-418J) says that  “After an order or decision on a civil penalty becomes final . . .  the civil penalty shall act as a judgment . . .”  Everybody seems to have assumed that the citation itself is the “civil penalty” so, if you make the same assumption, it – rather than an order upholding it – is what gets filed as a judgment.

Galloway also argued that premature renewal was ineffective. The court agreed (this is the useful, though hardly new, thing: you have to follow the renewal statute exactly). But it made no difference. 28-418 also says that after filing the civil penalty the State has eight years to enforce it. This trumps the five-year renewal statute for judgments generally. Though that much makes sense, the court then concludes that the two should be conflated, so that ADOSH gets eight years under its statute and all rights under the general one – which would include a right to renew that 28-418 doesn’t mention. That’s a conclusion not justified by anything in this opinion, which makes no attempt at the sort of statutory analysis necessary to do so.