This came out a couple of weeks ago but it takes us older folks time to dodder through 67 pages. This criminal case says unfortunate things about common law.

Far West ran a wastewater treatment plant. An employee suffered death by sewage in an underground tank. The recitation of facts borders on hysteria but is intended to show that the company’s higher-ups flagrantly disregarded and evaded safety measures, OSHA requirements, etc. Far West itself was convicted of various crimes including negligent homicide and aggravated assault.

It argued on appeal that it couldn’t be criminally liable and that the court made mistakes at trial. We will hit the highlights.

33-305 says that an “enterprise” commits a criminal offense if “the conduct constituting the offense consists of a failure to discharge a specific duty imposed by law” or if (paraphrasing) it is authorized or recklessly allowed by a manager. Maybe we shouldn’t blame the court’s analysis for being as clunky as the statute, though judges do preen themselves about being wiser than mere legislators. (In fairness, Far West’s arguments – that one statute “violates” another, for example – were evidently not well-crafted; sewage in, sewage out.)  The opinion should have focused on the second part of the statute. Instead, the brunt of it seems to be that the common-law duty to provide a safe workplace is a “specific duty imposed by law,” that it is no different than the requirements of 23-403 (to keep a safe workplace), and that it can therefore trigger the first part of 33-305.

We don’t know much criminal law but the folks connected with this case don’t seem to have known much civil. The common-law duty to provide a safe workplace for employees is just like the common-law duty to provide a safe store for customers, and like traditional common-law duties in general: a duty to use due care under the circumstances to make and keep things reasonably safe. The courts have been telling us for years that duty is separate from the acts necessary to fulfill it (Palsgraf rest in peace, though of course duty was not specific under that case, either). To call the duty to use reasonable care a “specific” duty, or to say that it is the same as a statute that says “you shall do such-and-such,” is a new conception of common law – or a misconception.

So when does a company’s negligence become criminal culpability? How does a corporation “assault” someone who slips on a loose widget? The opinion, clearly sensitive to criticism on that issue, devotes a whole section to saying that they are completely different things. What it boils down to is that criminal acts are really bad as opposed to just moderately bad and that courts know the difference when they see it.

As to the alleged errors at trial, the court justified a set of instructions that may have been, reading between the lines, even more fouled up than Far West made it out to be. More disturbingly, though, it held that the trial court was correct to allow evidence of the ADOSH investigation. A statute clearly prohibits that. But the court said that the statute merely creates a privilege that ADOSH can waive, citing for the proposition an Arizona Supreme Court case that it can’t have read since that just ain’t the holding. There is law about whether a statute can control evidence but none of it is here.

(link to opinion)

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.

An interesting but troubling opinion on the contempt power.

During a sentencing hearing, Stoddard, a detention officer, took papers out of defense counsel’s file while she was standing at the bench. She demanded them back and the hearing stopped. The judge held a hearing on Stoddard’s acts and found him in indirect civil contempt, ordering him to purge it by apologizing sincerely to counsel at a news conference in front of the courthouse.

Rather than do that, Stoddard went to jail and filed this this special action. He challenged the penalty, not the finding of contempt. He argued that his contempt was criminal, not civil, and that the court violated his due-process and First-Amendment rights.

Civil and criminal are controlled by statue and there is also a rule on criminal contempt. A civil contempt is a violation of a court order as well as the in-the-courtroom, “obstruct-the-administration-of-justice” type of thing. The latter is “direct” contempt, the former “indirect.” The court can act on direct contempt immediately; indirect needs a hearing.  Statutory criminal contempt is, basically, a criminal act that violates a court order.  Criminal contempt under Criminal Rule 33 is contempt that isn’t itself a crime. A criminal contemnor is entitled to trial. Sanctions for criminal contempt are to punish; civil sanctions are to enforce the court’s order – the contemnor can avoid jail by obeying it.

(Lacking that handy primer, this court got confused and found a direct contempt “indirect,” as the opinion footnotes.) 

Stoddard claimed that his contempt was criminal because the trial judge’s minute entry apparently made it sound like a contumacious sort of thing – which word Rule 33 uses – and because it happened during a criminal hearing. But the sanction was civil in nature – Stoddard could get out of jail by making the apology – so it was civil contempt.

(Well, actually, it was civil contempt after the judge modified his order. At first he ordered Stoddard jailed unless he made an apology that counsel was satisfied with. In other words, he wasn’t in jail until he agreed to do something, or until his sentence was up, but until counsel decided that he’d done enough to go free. That’s called enslavement, not contempt, which apparently occurred to somebody because the judge changed the order, dropping the counsel-satisfaction part.)

Stoddard’s due-process argument was based on the court’s refusal to let him use as evidence  the papers he took from counsel’s file. They were privileged letters. But the trial judge reviewed them in camera and Stoddard admitted that when he took them out and read them they did not indicate a security threat or future crime, which is what he said he had been worried about.

Stoddard claimed that forcing him to make an apology violates the First Amendment. The Court of Appeals avoided the constitutional issue by finding the apology an abuse of discretion. A civil contempt sanction “must be designed to coerce the person to do or to refrain from doing some act.” Apologizing after the fact didn’t do that. The judge should have ordered Stoddard to get additional training in courtroom decorum, or to explain to the judge that he knew he goofed and how he would do it better the next time, or some such thing.

Why is this troubling? Because contempt is not rocket science. It should be part of a trial judge’s basic fund of knowledge, not something hazily-remembered that he messes up when the time comes. Indirect for direct? An apology on the courthouse steps? This particular judge read up on contempt a couple of years ago – and got it wrong then, too. But presumably he’s not alone. We thought those COJET things talked about contempt once in a while. Its time for another session.