Baird v. State

ELLETT, Chief Justice:

(concurring in the result).

There might be merit to the prevailing opinion if the trial judge had ruled that the respondent did not have standing to bring the action. Had he done so, the complaint could have been amended to show the right to bring the action. The allegations made were that the respondent was an employer in Utah and is subject to the OSHA Act which is being unlawfully administered and enforced; and that he is a member of a class of people who have a joint or common right and complaint against the appellants. In the prayer of the complaint, the respondent asked that all penalties heretofore imposed and all assessments made be refunded. While respondent in his complaint did not specifically state that he had been amerced or that agents of the appellants had trespassed on his property; nevertheless, counsel for respondent, in arguing the case before us, assured us that such was the fact; and the statement was not challenged or denied by counsel for appellants.

The appellants made no contention in their answer that respondent had no standing to bring the action, nor did the respondent, the appellants, or the amicus curiae even so much as advert to the issue upon which the prevailing opinion takes refuge. *719 All parties desire us to inform them whether or not the OSHA Act is constitutional.

The lower court ruled that the act was unconstitutional in its entirety. The prevailing opinion reverses the case and states that the lower court should have dismissed the case ex mero motu. 1 This the court did not do.

We should explain why we reverse the holding of the trial court more fully than does the main opinion. The case should be remanded where the respondent could be permitted to amend to show that he has standing to maintain the action. That would also enable the appellants to know whether the act is good or bad. Although the holding of the main opinion is that the judgment is reversed, it appears from the reasons given therefor that it may simply be because of lack of standing and not because the act is constitutional. I, therefore, desire to explain my reasons for reversing the judgment.

This appeal is from a memorandum decision of a district court judge holding the Utah Occupational Safety and Health Act of 1973 to be unconstitutional. 2 Hereafter, unless otherwise noted, all references will be to Title 35, Chapter 9 of the Utah Code.

One of the declared purposes of the act was to provide a coordinated state plan for implementation, establishment, and enforcement of occupational safety and health standards as effective as the Federal Williams-Steiger Occupational Safety and Health Act of 1970. In attempting to accomplish the stated purpose, the act sets out a statutory design that is almost identical to the federal act. Section 18(b) of OSHA, 29 U.S.C.A. § 667 (b) (1975) allows states, under certain specified criteria:

. to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated

[[Image here]]

As the declaration of the Utah Legislature contained in Section 2(2) of the act, supra, indicates, the act was enacted so as to allow Utah to develop and enforce occupational safety and health standards as per Section 18(b) of OSHA, supra. It follows that if the act is virtually identical in terms of its administration and enforcement of occupational safety and health standards to OSHA, and OSHA does not violate the federal constitution, then the act likewise is not violative of the Utah State Constitution.

OSHA has been challenged on various constitutional grounds in a number of federal courts, including the United States Supreme Court. With one exception those challenges have been uniformly rejected.

In Atlas Roofing Co. v. OSHRC, 3 the Fifth Circuit Court of Appeals considered the issue as to whether or not the civil penalty of OSHA 4 was a penal sanction protected by the Sixth Amendment to the federal constitution. In holding that it was not a penalty, that court said:

. The focus of the statute — the control of job site safety practices and health conditions — has a demonstrable and legitimate government concern. The fact that the civil enforcement sanctions are inherently disabilities does not alter the nature of the Congressional purpose. And finally the Congressional purpose carefully to establish both civil and criminal sanctions and distinguishable procedures for imposing and reviewing them eliminate any question of Congressional intent. As Judge Friendly puts it .

‘When Congress has characterized the remedy as civil and the only consequence of a judgment for the Government is a money penalty, the courts have taken Congress at its word.’

*720 In Untermyer v. State Tax Commission, et al., 5 our Court held that Article I, Sec. 7 of the Utah State Constitution was substantially the same as the Fifth and Fourteenth Amendments to the federal constitution, and that decisions of the U.S. Supreme Court on the “due process” clauses of the federal constitution would be highly persuasive as to the application of the due process clause of our own state constitution. 6

The Utah OSHA Act is summarized as follows:

(1) The act imposes the statutory duty upon employers to avoid maintaining unsafe or unhealthy working conditions and empowers the Industrial Commission, through the Administrator of the Division, to promulgate safety and health standards. Two remedies are provided that permit the Division, proceeding before the Occupational Safety and Health Review Commission, (a) to obtain abatement orders requiring the correction of unsafe working conditions, and (b) to impose civil penalties on any employer maintaining an unsafe working condition.

(2) Under the act, Division inspectors are authorized to conduct reasonable safety and health inspections of an employer’s premises. (35-9-8(1)). If, upon a proper inspection a violation is discovered, the inspector may issue a citation to the employer fixing a reasonable time for abatement of such violation and proposing a civil assessment (35-9-9(1), 35-9-10(1)). Such proposed assessments may range from nothing for a nonserious violation, to not more than $1,000 for a serious violation up to a maximum of $10,000 for willful or repeated violations (35-9-21).

(3) If a cited employer desires to contest the assessment or abatement order, he may do so by notifying the Administrator of the Division within thirty days, in which event the abatement order is automatically stayed (35-9-10(2)).

(4) An evidentiary hearing is then held before a hearing examiner appointed by the Occupational Safety and Health Review Commission, (the “Review Commission”) (35-9-12(6)). The Review Commission consists of three members, appointed for three-year terms, each of whom is appointed by the Governor with the consent of the Utah State Senate, and each of whom is selected upon the basis of his experience and competence in the field of occupational safety and health (35-9-12(1)). At the evidentiary hearing the burden is upon the Division to establish the elements of any alleged violation, the propriety of the proposed abatement order, and the appropriateness of the proposed penalty; and the hearing examiner is empowered to affirm, modify, or vacate any or all of these items. The hearing examiner’s decision becomes the final order of the Review Commission unless a petition for review is filed with the Review Commission (35-9-12; 35-1-82.52 and 82.53).

(5) Final orders and decisions of the Review Commission are subject to a trial de novo in an appropriate Utah District Court and to review thereafter by the Utah Supreme Court (35-9-11(1); 35-1-34 through 35-1-36).

As is shown by the above-stated outline of the salient and relevant provisions contained in the act, the act provides that any employer served with a citation and proposed assessment have an opportunity to be heard in an administrative, adjudicatory hearing where the Division bears the responsibility and burden of showing a violation of the act. That hearing is conducted *721 before a hearing examiner who is appointed by the Review Commission and who must conduct such as per the evidentiary standards of the Utah Code (35^1-88); and, further, is required to make findings of fact, conclusions of law, and a recommended order. In addition thereof, such hearing must be a hearing of record, which record must be transmitted as part of the hearing examiner’s submission to the Review Commission as well as to the district court if the proceedings are carried that far (35-9-12(6) and 35-1-34).

As to the due process requirement, the act complies with constitutional provisions. The requirements of due process were set out in the case of Christiansen v. Harris 7 as follows:

Many attempts have been made to further define ‘due process’ but they all resolve into the thought that a party shall have his day in court — that is each party shall have the right to a hearing before a competent court, with the privilege of being heard and introducing evidence to establish his cause or his defense, after which comes judgment upon the record thus made. Says the standard definition: It ‘hears before it condemns, proceeds upon inquiry, and renders judgment only after trial.’ .

The trial court erred in holding that the act violated the due process clause of the constitution.

The trial court also held that the act authorized the Occupational Safety and Health Division to enact its own laws, to search without warrant, to instigate its own prosecutions for “believed” violations, and to conduct its own hearings and mete out punishments, all of which constituted a violation of the constitutional requirement of the separation of powers.

The act provides for the promulgation by the Commission of any national consensus standard, any adopted federal standard, or any adopted Utah standard unless such standard would not result in improved safety or health measures. The administrator, with the advice of the Advisory Council, may also promulgate rules and standards. Notice must be given to the public, and interested persons may submit written data or comments. Any employer may apply to the administrator for a variance from any such promulgated standard where hardship might result.

The granting of powers similar to the above has been held constitutional by this Court. In the case of Fry v. Utah Air Conservation Committee, 8 rules and regulations were promulgated and the Committee determined that there was a violation by Fry. It was there claimed that the constitutional requirements of due process of law and of delegation of legislative powers had been violated. This Court held that the act there did not violate any constitutional provisions.

In the case of Wycoff v. P.S.C., 9 this Court upheld an assessment of $18,500 as a penalty at the rate of $500 per day for 37 days’ violation of the rules and regulations of the Commission, and in doing so held:

There is no question but that in performing its multifarious duties in franchising and regulating public utilities the Commission is required to and does perform some functions of a judicial or quasi-judicial nature; nor that it is within the competence of the legislature to confer upon the Commission the power to do so and to enforce the law and its regulations made pursuant thereto by administrative procedures. It is well established that this includes the imposition of a monetary penalty for violation of law or lawful orders or regulations promulgated by the Commission within the scope of its administrative responsibility. .

The trial court also thought and held that the provision of Article I, Sec. 14 of the *722 Constitution of Utah was violated by the act. That section reads:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; .

It is to be noted that the constitutional provision only protects against unreasonable searches. Section 8 of the act in question provides only for reasonable searches. The language is clear:

The division or its representatives upon presenting appropriate credentials to the owner, operator, or agent in charge, may enter without delay at reasonable times any workplace where work is performed by an employee of an employer; inspect and investigate during regular working hours and at other reasonable times in a reasonable manner, any workplace and all pertinent methods, operations, processes, conditions, structures, machines, apparatus, devices, equipment and materials therein, and to question privately any such employer, owner, operator, agent, or employee. [Emphasis added.]

The act itself proscribes unreasonable searches and, therefore, does not offend against the constitution.

Article XVI, Sec. 6, of our state constitution provides: “. . . the legislature shall pass laws to provide for the health and safety of employees in factories, smelters, and mines.” Section 8 of that Article provides: “The legislature may, provide for the . . . comfort, safety and general welfare of any and all employees. No provision of this Constitution shall be construed as a limitation upon the authority of the legislature to confer upon any commission now or hereafter created such power and authority as the legislature may deem requisite to carry out the provision of this section.”

In 1917 our legislature enacted a statute 10 that gave broad powers and duties to the Industrial Commission, among which is the power to adopt standards and regulations and to enforce orders and take other action deembd necessary to protect life, health, safety, and welfare with regard to specific industries.

Human life is precious, and this state for over sixty years has undertaken to protect it, especially where employees are concerned. An employee works in conditions over which he has no control. The state, therefore, assumes the role of his protector. It is a proper police power that is exercised under the various acts passed pursuant to the constitutional mandate, and should be upheld unless clearly offensive. 11

There is a presumption that a statute or order of an administrative body acting pursuant to statutory authority, is constitutional in all cases; 12 and the presumption is greater where the interest of the state is involved than it is a case where only private interests are affected. 13

I would hold the Occupational Safety and Health Act to be constitutional in its entirety and, therefore, would reverse the judgment of the trial court. No costs should be awarded.

CROCKETT, J., concurs in the views expressed in the concurring opinion of EL-LETT, C. J.

. On its own motion without request from either party.

. Title 35, Chap. 9, U.C.A., 1953, adopted by Laws of Utah, 1973, Chap. 69.

. 518 F.2d 990, 1011 (5th Cir. 1975).

. See 17 OSHA, 29 U.S.C.A. § 666 (1975).

. 102 Utah 214 , 129 P.2d 881 (1942).

. See the following U.S. Supreme Court cases: U. S. v. Biswell, 406 U.S. 311 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972) where an unannounced war-rantless search of a locked storeroom under provisions of the Gun Control Act was held to be valid; Wyman, Commissioner of New York Department of Social Services v. James, 400 U.S. 309 , 91 S.Ct. 381 , 27 L.Ed.2d 408 (1971) wherein the U.S. Supreme Court held that a New York statute requiring a recipient of funds under the A.F.D.C. (Aid for Dependent Children) to permit agents of the commissioner to enter without warrants and inspect the home, did not violate the proscription of the Fourth Amendment.

. 109 Utah 1, 6 , 163 P.2d 314, 316 (1945).

. Utah, 545 P.2d 495 (1975).

. 13 Utah 2d 123 , 369 P.2d 283 (1962).

. U.C.A., 1953, 35-1-16.

. 16 C.J.S. Const. Law § 98.

. Norville v. State, 98 Utah 170 , 97 P.2d 937 (1940); 16 Am.Jur.2d, Const. Law, § 144.

. 16 C.J.S. Const. Law § 99.