Petition for Writ of Certiorari — Asta v. Illinois
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SR- 1783 | FULED
‘
No.
JOSEPH F. -
R
ae
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
FRANK ASTA, et a/.,
Petitioners,
STATE OF ILLINOIS,
Re spond nt.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ILLINOIS
ROBERT M, STEPHENSON Rex E. LEE *
COTSIRILOS, CROWLEY, CARTER G, PHILLIPS
STEPHENSON, TIGHE MARK D. Hopson
& STREICKER, LTD. LOREEN M. MARCIL
33 North Dearborn Street SIDLEY & AUSTIN
Chicago, Hlinois 60602 1722 Eve Street, N.W.
(312) 268-0845 Washington, D.C. 20006
(202) 429-1000
Counsel for Petitioners
May 3, 1989 * Counsel of Record
WILSON - Eres PrRintinc Co., Inc. - 789-0096 - WasHiIncron, D.C. 20001
QUESTION PRESENTED
Whether, under the Supremacy Clause, the Occupa-
tional Safety and Health Act (“OSH Act” or “OSHA”)
of 1970 preempts state criminal prosecutions of em-
ployers based on conduct or conditions regulated by the
Act, when the conduct and conditions in question are in
compliance with the Act’s standards and requirements.
PARTIES TO THE PROCEEDING
In addition to the parties listed in the caption, the fol-
lowing are additional petitioners:
Gerald Colby
Anthony Jordan
Kevin Keane
Allan Simon
Chicago Magnet Wire Corporation
(1)
TABLE OF CONTENTS
Page
QUESTION PRESENTED sisSicsdiheigehehshiooneeedannaaeaaieainl i
PARTIES TO THE PROCEEDINGS ......000000000......... i
py) FF Be ey lips | 5) | Reena emene om iv
OPINIONS BELOW rtcncleaaas uta 1
FETT, ineinincansisssxtennniin saeataartndebeadeanntaebaanicai 1
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED corhnnssnsslnbeanedinwenidebidahiabednnnian 2
RL EREEO TE, scsecsnsecnisstecreiecinaiiainieecidinienaemanbiia 3
A. The Occupational Safety and Health Act of
1970 . , eindesiaanenianeaieicnatsssi 3
B. Proceedings in the Lower Courts —......00000........... 7
REASONS FOR GRANTING THE PETITION .......... 10
SS TIARPIIR sxcihisceusinntoneantasaniaieneanielpoiens sasschdeladhaiensieindosiied 22
(iii)
iv
TABLE OF AUTHORITIES
CASES Pare
Amalgamated Ass'n of Street, Electric Raileay &
Motor Coach Employces Vv. Lockridge, 403 U.S.
271 (1971) 12-15
Arkansas Electric Cooperative Corp, Vv. Arkansas
Public Service Comm'n, 161 U.S. 875 (1985) 1]
California Vv. ARC America Corp., 57 U.S.L.W
1125 (1989) 15
Canital Cities Cable, Inc. Vv. Crisp, 467 U.S. 691
DR eaten Oh eee ecaks Cech cet vedas i sasancahorashiaics ohh neu ; 12
Cloverleaf Butter Co. v. Patterson, 315 U.S. 148
(1342) <:. 11
Colorado Vv. Kelran Construction, Ine... 18 OSHC
1898 (Dist. Ct. Colo., Oct. 6, 1988) 20
Cor Broadcasting Corp. V. Cohn, 120 U.S. 469
(1975) t= nee 2
Fidelity Federal Savings & Loan Ass’n Vv. de la
Cuesta, 458 U.S. 141 (1982 11, 12, 138
Florida Lime & Avocado Growers, Ine. Vv. Pal,
373 U.S. 132 (1963) 11-12, 13
Fort Halifax Packing Co. v. Coyne, 482 U.S. 1
(1987) Mee SEFC TES PY TET ts 2s. ree ee eh 13
Hines Vv. Davidowitz, 312 U SS 6 | 12
Industrial Union Dent. Ve. American Petroleum
Inst. 118 U.S. 607 sagt dando tcp uguee atic balnaass 4
519 (1977) 1b eb
Jones Vv. Rath Packing Co., 430 U.S.
Massachusetts Vv. dbearlag 57 U.S.L.W. 4429
(1989) | xaaneake Lodhcssth 15
Michiaan Conners end Hrecsere yee nV. . Morte.
tural Marketing and Bargaining Board, 467 U.S.
ME I oiccdeses edie suabdcctAd bcs ceeeeasdedscokecorcacnses 12
New York v. Pymm Thermometer Corp., No. 93086
(N.Y. Sup. Ct. Nov. 13, 1987), appeal pending,
ee ite RM, BIN es catia occa vacevedeebcsaceaenuaaanesamiceumnmaas 20
Peonle v. Heqgedus, 169 Mich. App. 62, 1425 N.W.2d
729, appeal pending, 129 N.W.2d 593 (1988). 19
People v. O'Neil, Nos. 83-11091, 81-5064 (Cook
County Cir. Ct. June 15, 1985), appeal pending,
App. Ct. Ill, Nos. 85-1853, 85-1854, 85-1855, 85-
I I IT eine seca cece casacinnaninnsncneceeesens 18
TABLE OF AUTHORITIES—Continued
Page
Pilot Life Insurance Co. v. Dedeaux, 481 U.S.
ft TR ein cc SAP al a aii pen oe Oe Me Ce ek MT Oe Dard Ol 13, 14
Rice Vv. Santa Fe Elevator Corp., 331 U.S. 218
RN eit ee ec are Ot i Nah oe 11
Sabine Consolidated, Inc. v. Texas, 756 S.W.2d 865
(Tex. Ct. App. 1988) 20
San —— Building Trades Council Vv. Garmon, 359
U.S. 286 (1959) ............ 12
Sears, a & Co. V. ae Diee go Cc iounty Distr ict
Council of Carpenters, 1456 U.S. 180 (1978) 5 ae ae
Shaw Vv. Delta Air Lines, Inc., 163 U.S. 85 (1983).. 18, 14
Sill:wood Vv. Kerrv-McGee Corp., 464 U.S. 238
(1981) 11
State v. Black, 144 Wis.2d 745, 425 N .W.2d 21
(Wis. App. 1988) 19
Thornock v. State, 745 P.2d 324 (Mont. 1987) 21
CONSTITUTIONAL PROVISIONS AND
STATUTES
U.S. Const. art. vi, cl. 2 2
28 U.S.C. § 1257 (3) 2
29 U.S.C. § 651 (b) foe Ar eRe as Ba Nace NET Le 16
29 U.S.C. § 652(8) 4
29 U.S.C. 3 653 (b) (4) ................. Lote cael ee
29 U.S.C. $ 655 (b) (5) es a ae
29 U.S.C. § 667 (a) (b), (ce) (2) passim
Ariz. Rev. Stat. Ann. § 23-118 . Os 6
Ill. Rev. Stat., ch. 38, § 8- 2 (a) net 7
Ill. Rev. Stat., ch. 38, $$ 12-1(a), (ce), 12-5 7
Ill. Rev. Stat., ch. 38, © 1005-8-1, 1005-8-3, 1005-
8-1, 1005-9-1 poke na anh oa fn a el 7
N.C. Gen. Stat. § € 95- 1: 9 SSE a Recep ere one gh ea SO 6
P.R. Laws Ann. ‘tit. 29, ch. 16 §$ 361x .__.. 6
LEGISLATIVE MATERIALS
S. Rep. No. 91-1282, 91st Cong., 2d Sess. rly. 63
(1970), reprinted in OSH Act Legis. Hist. 111-
47, 202 (1971)
vi
TABLE OF AUTHORITIES—Continued
Page
S. Rep. No. 91-1765, 91st Cong., 2nd Sess. 41, re-
printed in OSH Act Legis. Hist. 1194 (1971)... 5
116 Cong. Rec. 35607 (Oct. Ss, 1970), reprinted in
OSH Act. Legis. Hist. 297 ; ie 3
116 Cong. Rec. 36513, 36521 (Oct. 13, 1970),
printed in OSH Act. Legis. Hist. 324, 348 ............ 3,18
116 Cong. Rec. 37325, 37538 (Nov. 16, 1970), re-
printed in OSH Act Legis. Hist. 413, 425 3, 5
116 Cong. Rec. 37625-26 (Nov. 17, 1970), reprinted
Sa ee ne I, OIE, VI cc econ cs ees aera 5
116 Cong. Rec. 38384 (Nov. 23, 1970), reprinted
in OSH Act Legis. Hest. 1085 ................................ 5
116 Cong. Rec, 42208, 12205 (Dee. 17, 1970), re-
printed in OSH Act Legis. Hist. 1210, 1214 4,5
OTHER AUTHORITIES
Tie National Law Journal 1 «April 21, 1986) _...... 18
IN THE
Supreme Court of the Wuited States
OCTOBER TERM, 1988
FRANK ASTA, et al.,
Petitioners,
Vv.
STATE OF ILLINOIS,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF ILLINOIS
——_—_—___ ____.
Frank Asta, Gerald Colby, Anthony Jordan, Kevin
Keane, Allan Simon and Chicago Magnet Wire Corpera-
tion (“petitioners”) hereby petition for a writ of cer-
tiorari to review the judgment of the Supreme Court of
Illinois.
OPINIONS BELOW
The opinion of the Illinois Supreme Court (app. at 1-
17) is reported at 534 N.E.2d 962 (1989). The opinion
of the Appellate Court of Illinois, First Judicial District
‘app. at 18-24) is reported at 510 N.E.2d 1173 (1987).
The opinion of the Circuit Court of Cook County (app.
25-31) is not reported.
JURISDICTION
The opinion of the Illinois Supreme Court was entered
on February 2, 1989. On March 16, 1989, Justice
Stevens extended the time for filing a petition to and in-
9
cluding May 3, 1989. The jurisdiction of this Court is
invoked under 28 U.S.C. § 125713); see Cox Broadcast-
ing Corp. Vv. Cohn, 420 U.S. 469, 482-483 (1975).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Supremacy Clause of the United States Constitu-
tion provides in pertinent part:
This Constitution, and the Laws of the United States
... Shall be the supreme Law of the Land....
U.S. Const. art. vi, cl. 2.
Section 18/a) of the Occupational Safety and Health
Act of 1970 provides:
Nothing in this chapter shall prevent any State
agency or court from asserting jurisdiction under
State law over any occupational safety or health is-
sue with respect to which no standard is in effect
under section 655 of this title.
29 U.S.C. § 667(a).
Section 18(b) of OSHA provides:
Any State which, at any time, desires to assume re-
sponsibility for development and enforcement therein
of occupational safety and health standards relating
to any occupational safety or health issue with re-
spect to which a Federal standard has been promul-
gated under section 655 of this title shall submit a
State plan for the development of such standards
and their enforcement.
29 U.S.C. $ 667(b).
Section 4 of OSHA provides:
Nothing in this chapter shall be construed to super-
sede or in any manner affect any workmen’s com-
pensation law or to enlarge or diminish or affect in
any other manner the common law or statutory
8
rights, duties, or liabilities of employers and em-
ployees under any law with respect to injuries, dis-
eases, or death of employees arising out of, or in the
course of, employment.
29 U.S.C. § 653(b) (4).
STATEMENT
A. The Occupational Safety and Health Act of 1970
In 1970, Congress enacted the Occupational Safety and
Health Act to establish “uniformly applied occupational
safety and health standards.” S. Rep. No. 91-1282, 91st
Cong., 2d Sess. 1 (1970), reprinted in Legislative History
of- the Occupational Safety and Health Act of 1970
(“OSH Act Legis. Hist.”) at 141 (1971). In passing this
law, Congress recognized that a solution to the problem of
workplace safety required ‘‘comprehensive Federal legis-
lation which would appiy to all industries, and in a single
national effort... .” See 116 Cong. Rec. 35607 (Oct. 8,
1970), reprinted tn OSH Act Legis. Hist. at 297. Con-
gress made the OSH Act comprehensive because it found
that no one benefited from the irregular standards and en-
forcement practices then existing among individual states;
uniformity was deemed essential for the sake of employees
and employers alike.’
Congress understood that “the development of occupa-
tional health and safety standards involves technical and
complex problems requiring professional expertise and
competence.” S. Rep. No. 91-1282 at 63, reprinted in
OSH Act Legis. Hist, at 202; see also 8. Rep. No. 91-1282
'In addition to its concern for employee health and_ safety,
Congress was concerned about the disparate treatment of employers
from state to state and the competitive disadvantages imposed
upon “conscientious” employers. 116 Cong. Rec. 37325 (Nov. 16,
1970), reprinted in OSH Act Legis. Hisi. at 413. Thus, it saw a
need to provide for “fair and even” enforcement. 116 Cong. Ree.
36513 (Oct. 13, 1970), reprinted in OSH Act Legis. Hist. at 324.
4
at 1-7, reprinted in OSH Act Legis. Hist. at 141-147.
Thus, the OSH Act requires that federal “[{d]evelopment
of standards . .. shall be based upon research, demon-
strations, experiments, and such other information as may
be appropriate.” 29 U.S.C. § 655'b) (5).
The standards promulgated under OSHA were intended
by Congress to reflect a delicate balancing of competing
interests, measured by the best available scientific evi-
dence. The Secretary of Labor is specifically directed
to take account of “other considerations’—including
“feasibility” and “experience’—in addition to the “high-
est degree of health and safety protection” in prom-
ulgating standards. /d. Thus, an “occupational safety
and health siandard” is defined as a standard which is
“reasonably necessary or appropriate to provide safe or
healthful employment... .”) 29 U.S.C. $652(8) (em-
phasis added). Exposure standards for toxic substances
are set at a level “which most adequately assures, to the
extent feasible, on the basis of the best available evidence,
that no employee will suffer material impairment of
health ....” 29 U.S.C. § 655'b) 15) ‘emphasis added).
In fact, Congress specifically revised an earlier draft of
the OSH Act “to make it perfectly clear that it does not
require .. . standards that would assure an absolutely
risk-free workplace.” See Industrial Union Dept. V.
American Petroleum Inst., 448 U.S. 607, 641, 646-649
(1980) ‘Stevens, J.) (Noting that “the legislative history
. supports the conclusion that Congress was concerned,
not with absolute safety, but with the elimination of sig-
nificant harm.” Jd. at 646.). See discussion, infra at 15.
The legislative history of the OSH Act also makes clear
that Congress sought to encourage employer cooperation.
Thus, Congress expressly intended that the purposes of
the Act would be best achieved through “preventative
rather than punitive’ means. 116 Cong. Rec. 42203
(Dee. 17, 1970), reprinted in OSH Act Legis. Hist. at
1210. In this regard, Congress expressly considered the
5
inclusion of criminal penalties in the Act and decided that
they would be limited."
In providing for comprehensiveness and uniformity,
Congress did not intend to preclude any state involvement
in the field of occupational health and safety. Rather,
Congress undertook to balance “the legitimate rights and
interests of the States and the proper role of the Federal
Government,” 116 Cong. Rec. 38384 (Nov. 23, 1970), re-
printed in OSH Act Legis, Hist. at 1025, and expressly
delineated the proper state role in regulating and enforc-
ing workplace conduct and conditions.
Section 18/a) provides that a state may assert “juris-
diction” under state law “over any occupational safety or
health issue with respect to which no standard is in effect
” $181a), codified at 29 U.S.C. § 667(a). By its
terms, Section 18/a} expressly grants the states authority
or jurisdiction over workplace conditions which are not
regulated by the federal government under the OSH Act.
Section 18/b) sets forth the state’s role where OSH Act
standards are in effect. It autherizes state action, but
only pursuant to a federally approved state plan. To be
approved, the state plan must provide for development
and enforcement of health and safety standards which
“are or will be at least as effective {as OSH Act stand-
ards] in providing safe and healthful employment.”
* Congress carefully considered and debated whether the OSH
Act should contain criminal penalties for violations and, if so, the
appropriate penaltics. See 116 Cong. Ree. 37338 (Nov. 16, 1970),
reprinted in OSH Act Legis. Hist. at 425; 116 Cong. Ree. 37625-26
(Nov. 17, 1970), reprinted in OSH Act Legis. Hist. at 511: S. Rep.
No. 91-1765 at 41, reprinted in OSH Act Legis. Hist. at 1194: 116
Cong. Ree. 42208, 42205 (Dec. 17, 1970), reprinted in OSH Act
Legis, Hist. at 1210, 1214. The final Senate bill imposed criminal
penalties for wilful violations; the final House bill imposed civil
penalties only. The compromise reached and embodied in the con-
ference bill provided criminal penalties fer only those wilful
violations that result in death. S. Rep. No. 91-1765 at 41, reprinted
in OSH Act Legis. Hist. at 1194.
6
$ 18(¢c) 12), codified at 29 U.S.C. § 667(c) (2). Where a
proposed state standard is applicable to products dis-
tributed in interstate commerce, it will be approved only
if the state can show that the state standard is “required
by compelling local conditions” and does “not unduly bur-
den interstate commerce.” /d. Thus, states have the op-
tion of establishing equally effective standards or en-
forcement mechanisms only if they obtain prior federal
approval to do so.*
Section 4, codified at 29 U.S.C. § 653(b) (4), is a “sav-
ings clause” which says nothing about state regulation,
but instead addresses the effect of the OSH Act on prv-
vate rights of action existing under state common law
or statutes. Section 4 provides that nothing in the OSH
Act shall affect the “workmen's compensation law” or
other “common law or statutory rights, duties or liabili-
ties of employers and employees” that might arise in con-
nection with workplace conditions. By its terms, Section
4 “saves” only actions between employers and employees
which arise under state law. Section 4 says nothing
about state-initiated enforcement actions, whether civil
or criminal in nature. Certainly, neither the statute nor
its legislative history suggests that Section 4 was in-
tended to preserve state-initiated actions where such ac-
3 Several states in fact have done so. For example, under Ari-
zona’s state plan, a wilful violation resulting in the death of an
employee is punishable by a fine of up to $150,000 against an indi-
vidual and $1,000,000 against a corporation and imprisonment for
up to one and one-half years. Ariz. Rev. Stat. Ann. § 23-418.
Under Puerto Rico’s plan, a wilful violation causing death may
result in imprisonment for up to three and one-half years for the
first violation, and up to four and one-half years for a second viola-
tion. P.R. Laws Ann. tit. 29, ch. 16 $361x. North Carolina’s state
plan expressly provides for the application of state general criminal
laws for wilful violations that result in death. N.C. Gen. Stat.
$ 95-139. Illinois, however, does not have a state plan in effect. A
plan was submitted by the State and approved in November 1973,
but was withdrawn by the State in June 1975.
7
tions otherwise would be expressly preempted under Sec-
tion 18(b).
B. Proceedings in the Lower Courts
Petitioners are five individual officers and agents of
Chicago Magnet Wire Corporation (“CMW”) and the
corporation itself. CMW is an Illinois-based manufae-
turer of coated wire. During the relevant period, An-
thony Jordan was the president of CMW, Kevin Keane
was the plant manager, Frank Asta was the maintenance
foreman, Allan Simon was the plant engineer and Gerald
Colby served in several supervisory positions in the areas
of engineering, maintenance and quality control. Peti-
tioners were indicted under the Illinois penal code in
June, 1985 by. a Cook County, Illinois grand jury. Each
petitioner was charged with multiple counts of aggra-
vated battery and reckless conduct under Ill. Rev. Stat.
eh, 38, $$ 12-4(a), (ce) and 12-5. ‘App. at 32-34.)
The individual petitioners also were charged with con-
Spiracy to commit aggravated battery under Ill. Rev.
Stat.. ch. 38, § 8-2(a). (App. at 31-32.) 4
The indictments alleged that certain CMW employees
sustained injuries due to (1) exposure of the employees
to OSHA-regulated substances, (2) failure to provide
necessary sefety equipment and health monitoring sys-
tems, and (3) maintenance of dangerous working condi-
tions. According to the indictments, which read like an
OSHA notice of violation, the acts of the defendants con-
stituted a violation of the defendants’ “duty to provide
. Safe” workplaces for their employees. The indict-
ments strikingly fail to allege that the defendants had
violated OSH Act regulations. In fact, the State has
*The individual petitioners each were charged with 52 counts
of aggravated battery, 41 counts of reckless conduct and one count
of conspiracy. If convicted, they face up to 10-20 years imprison-
ment and $571,000 in fines. Ser app. at 31, 33, 34; TIL. Rev. Stat.
ch. 38, ©© 1005-8-1, 1005-8-3, 1005-8-4, 1005-9-1.
8
never contested petitioners’ claim that the conduct and
conditions at issue were in full compliance with OSH
Act regulations and standards. Instead, the State has
argued that compliance with OSH Act regulations and
standards is irrelevant in the context of a state criminal
prosecution.
Petitioners moved in the Cireuit Court of Cook County
to dismiss the indictments for failure to state an offense
on the ground that, under the Supremacy Clause, the
OSH Act preempted this state prosecution because all of
the conduct and conditions in question were regulated
by the Act and because petitioners were in compliance
with those regulations.* On December 13, 1985, the court
granted the motion and dismissed the indictments. The
court held that the OSH Act preempted the state prose-
cutions based upon the conduct at issue which, the court
found, was pervasively regulated under the OSH Act.
App. at 29-30.
The Appellate Court of Illinois affirmed. It relied pri-
marily upon the comprehensive nature of the OSH Act
and the fact that it provides states the opportunity to
develop and enforce their own occupational safety and
health schemes if they obtain federal approval in advance.
Based upon the legislative history of the Act. the court
concluded that Congress intended the imposition of crim-
inal sanctions for OSH Act-regulated activities only in
“highly limited circumstances.” App. at 24. Congress
provided that “health and safety requirements should be
established through standard-setting” and administrative
enforcement “which provides employers with clear and
detailed notice of their legal obligations.” Jd. The im-
5 Petitioners argued, in the alternative, that the indictments
should be dismissed because they violated defendants’ rights under
the Due Process Clause of the United States Constitution. This
claim was not decided by any of the courts below and is not now
before this Court.
——
9
position of criminal liability regardless of compliance
with OSH Act standards “would lead to piecemeal and
inconsistent prosecutions of regulatory violations,” which
Congress sought to avoid. Jd. The court observed that
application of state criminal laws would not be fore-
closed “if the prosecutions charged the defendants with
crimes not involving working conditions.” App. at 23.
But this case is different, the court reasoned, because
“[tlhe conduct the State seeks to regulate here, ... as
evidenced by the language of the indictments, is conduct
related to working conditions now regulated by OSHA.”
Id,
The Illinois Supreme Court reversed. The court dis-
tinguished state “police power’—which it held that Con-
gress, in enacting OSHA, did not intend to preempt—-from
an exercise of regulatory authority over workplace con-
ditions, which Congress did intend to preempt. App. at
8-10. The court rejected petitioners’ argument that the
imposition of criminal penalties in this context was in-
tended to, and did. operate as a form of “regulatory”
control, t.e., criminal sanctions would deter undesirable
conduct and coerce compliance with standards acceptabie
to the state. App. at 6-8. Instead, the court held that
imposition of criminal sanctions was analogous to impo-
sition of punitive damages in torts. App. at 10. Accord-
ing to the court, Congress, in Saving tort remedies from
preemption in Section 4, also intended to “save” state
criminal penalties.
The court then considered whether such state criminal
prosecutions conflict with the regulatory structure of the
OSH Act, and concluded that they do not. To the con-
trary, the court held that such prosecutions further the
goal of protecting workers by providing additional sane-
tions for harmful workplace conditions and ensuring that
responsible persons receive “appropriate punishment.”
App. at 15. The court ackn wledged that Congress had
“invited” state participation in health and safety regu-
10
lation through federally approved plans, but held that
this merely ‘demonstrates that |Congress| did not intend
to preclude supplementary State regulation.” App. at 9.
Accordingly, the court dismissed petitioners’ constitu-
tional defense based on the Supremacy Clause and there-
fore remanded the matter for prosecution.
REASONS FOR GRANTING THE PETITION
The decision of the Illinois Supreme Court exposes five
individual employees and a corporation to criminal pros-
ecutions potentially involving years of iniprisonment and
significant fines based on workplace conditions which have
been comprehensively regulated by the federal govern-
ment and were never alleged to have been in violation of
any federal standard. Thus, it raises an important and
recurring question of the scope of preempticn under the
Occupational Safety and Health Act of 1970. The analy-
sis by the court below represents a serious misapplica-
tion of this Court’s preemption holdings and conflicts
with a number of other state court decisions which have
held that no criminal prosecution is appropriate in the
circumstances of this case. Finally, the decision below
eliminates the uniformity of health and safety standards
in the workplace that Congress believed to be vital to
ensuring stable employment relations.
At bottom, the question whether an employer and man-
aging employees can be exposed to criminal prosecutions
by state authorities for conduct regulated by the OSH
Act is one this Court eventually will have te decide. That
issue is cleanly and squarely presented by the indictments
in this case, which the Illinois Supreme Court has now
held to be valid, regardless of the existence of, or compli-
ance with, federal standards under the OSH Act. Be-
cause individuals should not be subject to potential crim-
inal sanctions or the ordeal of a trial for conduet which
Congress has removed from the reach of state criminal
prosecutions—and because those individuals’ susceptibility
11
to prosecution should not depend on the particular state
in which they happen to live and work—-the Court should
grant the petition and resolve this important issue of
federal law on which state courts have divided.
A.
1. Federal preemption of state law under the Suprem-
acy Clause turns on congressional intent. Under the pre-
emption doctrine, preemption is “compelled whether Con-
gress’ command is explicitly stated in the statute’s lan-
guage or implicitly contained in its structure and pur-
pose.” Fidelity Federal Savinas & Loan Ass’n v. de la
Cuesta, 458 U.S. 141, 153 (1982).° Where Congress in-
tends a matter to be controlled exclusively by federal
law, it is said to “preempt the field.” In that situation.
“any state law falling within that field is preempted,”
even if the state law complements federal statutory pur-
poses or standards. Si/kiood v. Kerv-McGee Corp., 464
U.S. 238, 248 (1984). See also Rice vy. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947): Cloverleaf Butter Co.
V. Patterson, 315 U.S. 148, 155-156 (1942).7
In addition, preemption is required whenever state law
actually conflicts with federal law. See Fidelity Federal
Savings & Loan Ass’, 458 U.S. at 153: Florida Lime &
* Thus, a finding of preemption may be based on the express
language of the statute, Jones v. Rath Packing Co., 430 US. 519,
528-32 (1977), or implied from a reading of the statute as a whole,
including its structuce and legislative histery, soc Arihopsas Elee-
trie Cooperative Corp. Vv. Arkansas Public Service Comm'n, 461 U.S.
575, 386-387 (1983).
* Such preemption is implied where the scheme of federal regula-
tion is so “pervasive’as to make reasonable the inference that
Congress left no room for the States to supplement it,” or where
“the object sought to be obtained by the federal law and the
character of obligations imposed by it” reveal the intent to dis-
place state law. Fidelity Federal Savings & Loan Ass'n, 458 U.S.
at 155, citing Rice, 331 U.S. at 230.
12
Avocado Growers, Inc. Vv. Paul, 573 U.S. 182, 142-148
(1963). Conflict will be found where federal law and
state law impose inconsistent cuties making compliance
with both impossible or where state iaw “stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Hines Vv. Davido-
witz, 8312 U.S. 52, 87 (1940). See also Michigan Canners
and Freezers Assn, Inc. Vv. Agricultural Marketing and
Bargaining Board, 467 U.S. 461, 469 (1984) ; Jones, 480
U.S. at 526, 540-541."
Preemption does not, as the court below suggested, turn
on the type of state law involved. See Sears, Roebuck &
Co. v. San Diego County District Council of Carpenters,
436 U.S. 180, 197 (1978). State laws of general applica-
bility, criminal laws and administrative regulations all
are subject to the dictates of the Supremacy Clause. See
Capital Cities Cable, Inc. Vv. Crisp, 467 U.S. 691 (1984) ;
San Diego Building Trades Council Vv. Garmon, 359 U.S.
925 11959). The “eritical inquiry” is not whether the
state law is a “regulatory” provision or a “general” crim-
inal or tort law, but instead, whether the state law is
brought to bear on conduct regulated under the pre-
emptive umbrella of federal law. Sears, Roebuck & Co.,
436 U.S. at 197. 199. “It is the conduct being regulated,
not the formal description of governing lega! standards,
that is the proper focus of concern.” Amalgamated Ass’
8“The test of whether both federal and state regulations may
operate ... is whether both regulations can be enforced witheut
impairing the federal superintendence of the field, not whether they
are aimed at similar or different objectives.” Florida Lime &
Avocado Growers, Inc., 373 U.S. at 142. Conflict in “technique” is
considered as disruptive as conflict in “overt policy.” Amalgamated
Ass'n of Street, Electric Railway & Motor Coach Employees V.
Lockridge, 403 U.S. 274, 287 (1971). In addition, “|[t!he relative
importance to the State of its own law is not material when there
is a conflict with a valid federal law...” Fidelity Federal Savings
& Loan Ass'n, 458 U.S. at 153.
13
of Street, Electric Railway & Motor Coach Employees Vv.
Lockridge, 403 U.S. 274, 292 (1971).
2. The decision of the Illinois Supreme Court is in-
consistent with these basic principles-of preemption doc-
trine as enunciated by this Court. Instead of carefully
examining the language, structure and history of the
OSH Act, the court simply engaged in an irrelevant anal-
ysis of the distinctions between state criminal laws and
“regulatory” laws governing workplace conditions and
the similarities between private tort actions and state
criminal prosecutions. Thus, the court below has held
that, in Illinois at least, traditional preemption doctrine
does not apply to “general” criminal laws. But this
Court consistently has rejected any such suggestion. See,
e.g., Sears, Roebuck & Co., 436 U.S. at 191-93; Florida
Lime & Avocado Growers, Inc., 373 U.S. at 142; see
also Fidelity Federal Savings & Loan Ass’n, 458 U.S. at
153. If the court below had properly analyzed the prob-
lem, it would have concluded that, preemption is appro-
priate in this case (1) under the express terms of the
statute, (2) as a matter of “preemption of the field” and
(3) because of the conflict between federal and state
standards.
First, examination of the statutory language demon-
strates that this prosecution is expressly preempted by
OSHA.* Sections 4 and 18 of the statute delineate the
* This Court’s decisions regarding the preemptive effect of the
Employee Retirement Income Security Act of 1974 (“ERISA”)
offer guidance in this regara. Like the OSH Act, ERISA contains
express preemptive language and a savings clause. Also like the
OSH Act, ERISA was intended to establish a “comprehensive legis-
lative scheme,” which “represents a careful balancing” and “policy
choices,” Pilot Life Insurance Co. Vv. Dedeaux, 481 U.S. 41, 54
(1987), and was enacted to climinate the “threat of conflicting or
inconsistent State and local regulation ... .” Jd. at 46. See also
Fort Halifax Packing Co. Vv. Coune, 482 U.S. 1, 9 (1987). Based
on this intent, this Court has consistently construed ERISA’s pre-
emption clause broadly, giving ecifect to its “plain language.” Shaw
14
proper role of state law with respect to OSHA-regulated
conduct or conditions. Section 4 is the “savings clause”
of the OSH Act. It provides that:
Nothing in |OSHA] shall be construed to super-
sede or in any manner affect any workmen's com-
pensation law or to enlarge or diminish . . . common
law or statutory rights, duties, or liabilities of em-
ployers and employees under any law with respect
to injuries, diseases or death . . . in the course of,
employment.
29 U.S.C. $ 653¢b) (4). Under the plain meaning of the
statute, Section 4 clearly is designed to preserve state
workmen’s compensation and other private civil tort (or
contractual) actions. Although it makes clear that Con-
gress did not intend the Act to have any effect on the
“rights, duties or liabilities of employers and employees,”
the provision says nothing about actions undertaken by
the state itself,
Section 18 addresses the preemptive effect of the Act
on state-initiated actions. On an “issue with respect to
which a Federal standard has been promulgated,” which
is this case, a state may only “assume responsibility for
development and enforcement” of standards relating to
such issues if a federally-approved state plan is in place.
29 U.S.C. $6671(b'. Thus, the plain meaning of the
OSH Act makes clear that Congress intended to preclude
any state-initiated action regarding workplace safety—
including “general” criminal prosecutions—unless under-
taken pursuant to an approved state plan. No such plan
exists and, therefore, under the express terms of Section
V. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983). See also Pilot
Life Insurance, 481 U.S. at 46-47. Its savings clause, in contrast,
has been construed narrowly, fd. at 52; Shaw, 4623 U.S. at 104, to
save only those actions expressly enumerated. Following that ap-
proach in this case leads inexorebly to the conclusion that the
criminal prosecution is preempted by Section 18.
15
18 the enforcement action brought in the State of I]linos
is preempted.
Second, even absent express preemption, OSHA is a
paradigm of a federal effort to “preempt the field.” The
statute and its legislative history repeatedly reinforce
the idea that when there are federa! standards in place,
those standards are intended to be the uniform and com-
prehensive standards (in the absence of an approved
state plan). See 29 U.S.C. $$ 6671(a) & (bi; S. Rep. No.
91-1282 at 1-7, reprinted in OSH Act Legis. Hist. at 141-
147. It is no answer to say, as the State does in this
case, that Congress intended to preempt only the “field”
of occupational safety and health “regulation” and not
the “field” of “general criminal law.” Here, the criminal
charge is based upon breach of a “duty” to provide a safe —
workplace, i.e., exposing employees to certain conditions
or substances which are regulated by the OSH Act.
Where, as here, OSHA has taken it uvon itself to define
the employers’ duties, there can be no question that the
state is operating within the “field” of exclusive regula-
tion—regardless of what category or label the state uses
to define its legal action. As the Appellate Court of [i-
nois correctly observed, the dispositive fact is that “! tthe
conduct the State seeks to regulate here, .. . ns evidenced
by the language of the indictments, is conduct related to
working conditions now vegulated by OSHA.” App. at
za.”°
Finally, the Illinois Supreme Court’s conclusion that
no conflict exists between the criminal prosecution and
™ Thus, this case is dissimilar from Massachusetts y. Merash,
57 U.S.L.W. 4429 (1989), where this Court found that the conduct
at issue was not conduct rerulated under ERISA. The case also is
readily distinguishable from California ». ARC America Corp.,
Where the court specifically found that “Congress intended the
federal antitrust laws to supplement, not displace, state antitrust
remedies” and where there was no conflict in the application of
both state and federal remedial provisions to the same conduct.
57 U.S. L.W. 4425, 4427, 4428 (1989).
15
federal workplace regulation under the OSH Act is
fatally flawed because it is not based on a consideration
of the “full purposes and objectives” of the OSH Act and
the potential effects of a state criminal prosecution in the
area. The Illinois court’s reliance on the OSH Act’s
“stated goal” “to assure so far as possible every working
man and woman in the Nation safe and healthful working
conditions,” 29 U.S.C. $ 651(b), is certainly accurate—
as far as it goes. The problem is that the court below
focused on that stated purpose to the exclusion of all of
the other specific, substantive provisions of the Act. Con-
gress did not stop with a simple assertion that its goal
was to assure safe working conditions. It specifically
provided_that states were to exercise jurisdiction in only
two circumstances: (1) where “no |federal] standard is
in effect”, and (2) where, under a federally-approved
plan, the state has adopted standards at least as effective
as promulgated under the OSH Act.
State prosecutions based on workplace conditions con-
flict with the federal law because the OSH Act mandates
uniform development and enforcement of fair and bal-
anced occupational safety and health standards, which
are established pursuant to scientific standards and pro-
cedural protections. Ad hoc state prosecutions for conduct
regulated by the OSH Act, such as the one endorsed by
the court below, have resulted and will continue to result
in the enforcement of different standards of occupational
health and safety. Regardless of whether such ad hoc
state standards are more “strict” or more “lenient,” ap-
plication of a different standard to conduct and condi-
tions in compliance with OSHA standards conflicts with
Congress’ objective of creating uniform and_ balanced
workplace safety standards."' See supra at 3-4,
1 The court below brushed aside the conflict created when the
state enforces more stringent standards than OSIIA’s by stating
that OSH Act standards were intended merely to establish a “na-
17
8. If the preemption ruling of the Illinois Supyeme
Court is left in place, the development of occupational
health and safety standards in the manner Congress in-
tended and provided for in the OSH Act will be severely
undermined. Instead of experienced and knowledgeable
federal officials setting uniform national workplace sarety
standards based on available scientific evidence, see supra
at 4, an entire “secondary” level of ‘workplace stand-
ards” will be established by local prosecutors and juries,
wholly uninformed ‘and, most likely, wholly uncon-
cerned) with the economic and scientific complexities
of workplace safety. Such local authorities wil! simply
decide, without guidance, whether to deem a particular
workplace envirunment “safe’—-regardless of what stand-
ards the federal government, under OSHA, has estab-
lished to regulate that environment.
Of course, these local “standards” will be established
on a subjective and post-hoc basis, rather than on the
basis of objective scientific criteria, as required under
$655(b) (5), thereby negating congressional efforts to
ensure that employers and employees know what their
rights and duties are. See supra at 3. This relegation o+
federal standards to a subordinate role could not be more
clearly illustrated than by the State’s successful conten-
tion that OSHA standards simply are irrelevant in this
case.
In sum, the decision below invites localized and_poli-
ticized decisionmaking on workplace standards, the very
tionwide floor’, app. at 10-11, and that state standards “more
protective” of health and safety will further the OSH Act’s “stated
goal” of worker protection, app. at 14-15. That simply is an er-
roncous reading both of preemption principles, in general, and the
OSH Act, in particular. As stated in the text, the OSH Act is a
statute that deals not just with general workplace safety objectives,
but specifically limits state authority to instances where no federal
standard is in effect or where the state has adopted a federally-
approved plan for enforcing workplace health and safety.
18
conditions that the OSH Act was designed to correct.
Senator Saxbe may have described those conditions best:
In some States it was political football. When the ad-
ministration would change, inspectors would change.
They were not always career people who were quali-
fied. Many times they were local politicians who
were offered a job without any real training in
health and safety.
116 Cong. Ree. 36521 (Qct. 13, 1970), reprinted in OSH
Act Legis. Hist. at 343. Under the decision below, local
prosecutors will have discretion to use imprecise judg-
men. as to workplace safety to indict an employer or
even, in extreme cases, for purposes of political harass-
ment. Moreover, it seems plain that Congress’ intent to
encourage employer cooperation will be thwarted if em-
plovers ‘such as petitioners! who comply with OSH Act
standards become subject to loca! prosecution,
B.
Although prosecutions such as this one are a_ rela-
tively recent phenomenon, this is by no means an isolated
case.'? This case is simply one of a substantial number
in which local prosecutors have attempted to use state
criminal prosecutions in an effort to “reculate’ conduct
or conditions otherwise exclusively regulated under the
OSH Act. Not only does the sheer volume of reported
cases indicate that the decision below involves an issue
of federal law that is recurring and important, but the
decisions in various jurisdictions have heen inconsistent.
'2 The first state conviction of a corporate officer for a workplace
death occurred in Cook County, Tlinois in 1985 in the case of
People v. O'Neil, Nos. 83-11091, 84-5064 (Cook County Cir. Ct.
June 15, 1985), aqppea! pending, App. Ct. TL. Neos, 85-1853, 85-1854,
85-1855, 85-1952 and 85-1953. in connection with the death of an
employee from cevnanide fumes. Sce The Netional Law Journal,
April 21, 1986, at 1, col. 1. The preemption question was not raised
at trial, but was raised on appeal.
19
Thus, the fate of individual criminal defendants, such as
petitioners, has depended on their place of residence or
employment. Such a situation clearly warrants review
by this Court.
At present, the holding below conflicts with decisions
of courts in several states that have held that the OSH
Act preempts prosecutions based on workplace conditions.
In addition, the holding below conflicts with the Montana
Supreme Court’s interpretation of the preemptive effect
of the OSH Act."
In People v. Hegedus, 169 Mich. App, 62, 425 N.W.2d
729 +1988), a supervisor was charged with involuntary
manslaughter in connection with the death of an employee
from carbon monoxide intoxication. The Michigan Court
of Appeals held that the OSH Act preempted the prosecu-
tion on the ground that it “expressly provides for the
adoption of federal standards of industrial safety. Al-
though the states are permitted to exercise independent
state action under certain circumstances, such jurisdiction
is severely limited” to situations where there is no federal
~ standard in effect or where there is a federally-approved
state plan in effect. 425 N.W.2d at 732. The court noted
that Michigan had such a plan but the prosecutions were
not brought pursuant to it. Thus, the court held that the
state was trying to circumvent the OSH Act and the pen-
alties provided for under the Michigan plan, in direct
conflict with § 667 “which specifically addvesses a state’s
‘jurisdiction’ with regard te occupational safety and
health issues.” Jd. at 732. The Michigan Supreme Court
has granted leave to appeal with respect to the limited
issue of whether the OSH Act preempts the prosecution.
429 N.W.2d 593 ‘Mich, 1988).
The Wisconsin Court of Appeals, like the Illinois Supreme
Court, decided against preemption in State v. Black, 144 Wis.2d
745, 425 N.W.2d 21 (Wis. App. 1988), in which an officer and
operator of a fireworks plart was convicted of homicide by reckless
conduct following a fire and explosion that hilled an employee.
20
In Sabine Consolidated, Inc. v. Texas, 756 S.W.2d 865
(Tex. Ct. App. 1988), a Texas construction company and
its president were convicted of criminally negligent homi-
cide in connection with the death of two employees when
a trench they were working in collapsed. The Texas Court
of Appeals reversed on the ground that the OSH Act
preempted the prosecution. The court relied on Sections
667 and 653(b) (4) to hold that the OSH Act preempts
the entire field of workplace safety regulation. It spe-
cifically found that Section 653'b)'4) does not “save”
state criminal actions from preemption. /d. at 868. The
court noted that while state criminal prosecutions “do
not literally purport to establish worker safety standards
_.. the practical effect” is to do so. Jd. It expressed its
concern that if a state were allowed to undertake such
prosecutions, “an employer could meet OSHA standards
but still be prosecuted by the State a result | which would
be] inconsistent with OSHA’s intent to establish uniform
safety standards.” Jd. at 869.
In Colorado v. Kelran Construction, Ine., 18 OSHC
1898 (Dist. Ct. Colo. Oct. 6, 1988), the defendant corpora-
tion was charged with criminally negligent homicide and
the court dismissed the indictment on the ground that
“Congress has expressly disallowed regulations other than
OSHA’s or those of a state properly approved by OSHA.”
Id. at 1899-1900. It found that application of general
criminal laws in an OSH Act context constituted such
prohibited regulation, stating that “[{t|he Court cannot
find that Congress intended [that] employers were re-
quired to meet the federal OSHA and OSHA approved
state standards PLUS other standards imposed by local
prosecutors, courts, and juries.” /d. at 1899."
144 Similarly, in New York v. Pumm Thermometer Corp., No.
93086 (N.Y. Sup. Ct. Nov. 15, 1987), appeal pending, N.Y. App.
Div., a New York thermometer manufacturer and its owners were
found guilty by a jury of criminal assault and reckless endanger-
ment for allowing workers to be exposed to what the jury believed
21
Finally, in Thornock v. State, 745 P.2d 324 (Mont.
1987), an employee injured by a_ sawmill conveyer
brought a negligence action against the State of Montana
based upon a state statutory duty to inspect hazardous
workplaces and machinery. The Montana Supreme Court
affirmed a grant of summary judgment against the em-
ployee on the ground that the OSH Act preempted the
action. The court rejected the employee’s argument that
“OSHA was intended to preempt states from setting and
enforcing their own standards as to worker safety but not
as to inspections,” ‘d. at 326, om the ground that inspec-
tion is “part and parcel of the enforcement of standards”
Which “Congress has stated expressly that formulation
and enforcement of work place safety will be a preroga-
tive of OSHA,” id. at 328. The court observed that “i]t
is plain from reading the Occupationa! Safety and Health
Act that Corgress intended to occupy the field of assuring
worker safety” and noted that “to regain the right to set
and enforce work safety rules” the state must enact and
obtain federal approval of a state plan. Jd.
Thus, the issue of OSH Act preemption is a recurring
one Which ultimately will have to be resolved by this
Court. The number of criminal prosecutions in recent
years compared to prior years demonstrates a marked
trend toward greater use of state criminal laws to enforce
workplace standards, which will only continue if left ua-
checked. Mosreover, the stakes are high. Employers are
subject to criminal prosecution for conduct and conditions
which may, as in this case, comply with federal standards.
State courts so far have been unable to resolve the issue
iy any consistent manner. Thus, employers and employees
alike are provided no guidance as to their respective
rights and responsibilities.
to be unsafe levels of me reury fumes. However, following the entry
of the Jury verdict, the trial jud.co set aside the verdict on grounds
of OSH Act preemption,
22
In the meantime, the integrity of the OSH Act is being
eroded. State and local prosecutors are implementing and
enforcing state “standards” without obtaining federal ap-
proval of a state plan, in direct contravention of Congress’
intent. The confidence of employers and employees in the
significance and effectiveness of OSH Act standards is un-
dermined, especially in the case of prosecutions for con-
duct which complies with those federal standards. And
the ability of the OSH Act’s administrators to fulfill Con-
gress’ objective of uniform, predictable and effective na-
tional workplace safety standards is seriously compro-
mised. Accordingly, this case presents precisely the type
of issue that historically was subject to the mandatory
jurisdiction of the Court, and that should be accepted for
discretionary review now because of its fundamental im-
portance, which transcends the specific facts of the case
before the Court.
CONCLUSION
The petition for a writ of certiorari to the Supreme
Court of Illinois should be granted.
Respectfully submitted,
Ropert M. StTerPHENSON REX E. LEE *
COTSIRILOS, CROWLEY, CARTER G,. PHILLIPS
STEPHENSON, TIGHE MARK D. Hopson
& STREICKER, Lp. LOREEN M. Marcin
35 North Dearborn Street SIDLEY & AUSTIN
Chicago, Illinois 60602 1722 Eve Street, N.W.
(312) 263-0345 Washington, D.C. 20006
(202) 129-1000
Counsel for Petitioners
May 3, 1989 * Counsel of Record
APPENDICES
la
APPENDIX A
IN THE SUPREME COURT OF ILLINOIS
Docket No. 65588—-Agenda 12-—March 1988.
THE PEOPLE OF THE STATE OF ILLINOIS,
Appellant,
V.
CHICAGO MAGNET WIRE CORPORATION et al.,
Appellees.
JUSTICE WARD delivered the opinion of the court:
The issue we consider on this appeal is whether the
Occupational Safety and Health Act of 1970 (OSHA)
(299 U.S.C. §651-et seg. (1982)) preempts the State—_
from prosecuting the defendants, in the absence of ap-
| proval from OSHA officials, for conduct which is regu-
lated by OSHA occupational health and safety standards.
Indictments returned in the circuit court of Cook
| County charged the defendants, Chicago Magnet Wire
Corporation, and five of its officers and agents, Anthony
Jordan, Kevin Keane, Frank Asta, Gerald Colby and
Allan Simon, with aggravated battery (Ill. Rev. Stat.
1985, ch. 38, pars. 12-4(a), (eb) and reckless conduct
(Ill. Rev. Stat. 1985, ch. 38, par. 12-5). The individual
defendants were also charged with conspiracy to commit
ageravated battery ‘Ill. Rev. Stat. 1985, ch. 38, par.
8-2(a)). In substance, the ind‘ctments alleged that the
defendants knowingly and recklessly caused the injury
of 42 employees by failing to provide for them necessary
safety precautions in the workplace to avoid harmful
23
exposure to “poisonous and stupifying substances” used
by the company in its manufacturing processes. On ihe
defendants’ motion, the trial court dismissed the charges,
holding that OSHA has preempted the State from prose-
cuting the defendants for the conduct alleged in the
indictments. The appellate court affirmed (157 Ill. App.
3d 797), and we granted the State’s petition for leave
to appeal under Supreme Court Rule 315 (107 Ill. 2d
R. 315(a)).
Defendant Chicago Magnet Wire Corporation is an
Illinois corporation whose principal business is the coat-
ing of wire with various substances and chemical com-
pounds. Anthony Jordan, Kevin Keane, Allan Simon,
Frank Asta and Gerald Colby are officers or managerial
agents of the corporation.
The indictments charged that the defendants unreason-
ably exposed 42 employees to “poisonous and stupifyving
substances” in the workplace and prevented the employ-
ees from protecting themselves by “failing to provide
necessary safety instructions and necessary safety equip-
ment and sundry health monitoring systems.” The in-
dictments also alleged that the defendants improperly
stored the substances, provided inadequate ventilation
and maintained dangerously overheated working con-
ditions.
Counts of the indictments charging the defendants
With aggravated battery alleged that the defendants ex-
posed the employees to the toxie substances with “the
conscious awareness that a substantial probability existed
that their acts would cause great bodily harm” in vio-
lation of section 12-4'a! of the Criminal Code of 1961
(Ill. Rev, Stat. 1985, ch. 38, par. 12-4(a)). Other counts
charging the defendants with acgravated battery alleged
that the defendants knowingly committed acts “with the
awareness that a substantial probabilitv existed” that
their conduct would cause the emplovees to “take by
deception [of the employer], for other than medical pur-
3a
poses, poisonous and stupifying substances” in violation
of section 12-4(¢c) (Ill. Rev. Stat. 1985, ch. 38, par. 12-
4ic)). The defendants were charged with reckless con-
duct in that they exposed the employees to substances
“in a reckless manner, which caused harm to and en-
dangered “ * * [their] bodily safety * * * by con-
sciously disregarding a substantial and unjustifiable risk
of harm * * * which constitute|s] a gross deviation from
the standard of care which a reascnable person would
exercise in this situation.” (Ill. Rev. Stat. 1985, ch. 38,
par. 12-5.) The conspiracy counts alleged that the in-
dividual defendants conspired with the intent to commit
aggravated battery and charged that in furtherance of
the conspiracy, the defendants committed certain overt
acts. Ill. Rev. Stat. 1985, ch. 38, par. 8-2(a).
The circuit court dismissed the indictments, holding
that OSHA preempts the States from prosecuting em-
ployers for conduct which is governed by Federal occu-
pational health and safeiy standards, unless the State
has received approval from OSHA officials to administer
its own occupational safety and health plan. The court
stated that because the conduct of the defendants set
out in the indictments was governed by OSHA occupa-
tional health and safety standards, and the State had not
received approval from OSHA officials to administer its
own plan, it could not prosecute the defendants for such
conduct.
The extent to which State law is preempted by Federal
legislation under the supremacy clause of the Constitu-
tion of the United States is essentially a question of
congressional intendment. ‘(See Malone v. White Motor
Corp. (1978), 485 U.S. 497, 504, 55 L. Ed. 2d 443, 450,
98 S. Ct. 1185, 1190; Retail Clerks International Associ-
ation, Local 1625 uv. Schermerhorn (1963), 375 U.S. 96,
11 L. Ed. 2d 179, 84 S. Ct. 219.) Thus, if Congress,
when acting within constitutional limits, explicitly man-
dates the preemption of State law within a stated situa-
4a
tion, we need not proceed beyond the statutory language
to determine that State law is preempted. (Pacific Gas
& Electric Co. v. State Energy Resources Conservation
& Deveolpment Comn’n (1983), 461 U.S. 190, 203, 75 L.
Ed. 2d 752, 765, 103 S. Ct. 1713, 1722.) Even absent an
express command by Congress to preempt State law in a
particular area, preemptive intent may be_ inferred
where ‘“‘the scheme of federal regulation is sufficiently
comprehensive to make reasonable the inference that
Congress ‘left no room’ for supplementary state regula-
tion” (Hillsborough County v., Automated Medical Labo-
vatories, Inc. (1985), 471 U.S. 707, 713, 85 L. Ed. 2d
714, 721, 105 S. Ct. 2371, 2875; Rice v. Santa Fe Eleva-
tor Corp. (1947), 331 U.S. 218, 230, 91 L. Ed. 1447,
1459, 67 S. Ct. 1146, 1152), or where the regulated field
is one in which “the federal interest is so dominant that
the federal system will be assumed to preclude enforce-
ment of state laws on the same subject” (Rice v. Santa
Fe Elevator Corp. (1947), 331 U.S. 218, 230, 91 L. Ed.
1447, 1459, 67 S. Ct. 1146, 1152; Hines v. Davidowitz
(1941), 312 U.S. 52, 85 L. Ed. 581, 61 S. Ct. 399). Con-
gressional intent to preempt State law may also be in-
ferred where “ ‘the object sought to be obtained by the
federal law and the character of obligations imposed by
it may reveal the same purpose.’” Fidelity Federal Sav-
ings & Loan Association ve. de la Cuesta (1982), 458
U.S. 141, 153, 73 L. Ed. 2d 664, 675, 102 S. Ct. 3014,
3022, quotir + Rice ve. Santa Fe Elevator Corp. (1947),
331 U.S. 218, 230, 91 L. Ed. 1447, 1459, 67 S. Ct. 1146,
1152.
The declared purpose of OSHA is “to assure so far as
possible every working mun and woman in the Nation
safe and healthful working conditions and to preserve
our human resources.” (29 U.S.C. §651'b) (1982) .1
To this end, Congress gave the Secretary of Labor the
authority “to set mandatory occupational safety and
health stendards” for the workplace and to secure com-
pliance with those standards by imposing civil and crim-
da
inal sanctions for their violation. «See 29 U.S.C. § 651
(bi'3) +1982).) An “occupational health and safety
standard” is defined as “a standard which requires con-
ditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably
necessary or appropriate to provide safe or healthful em-
ployment and places of employment.” (29 U.S.C. § 652
(8) (1982).) OSHA also imposes a duty on emplovers,
separate and independert from specific standards set by
the Secretary, to provide a workplace “free from recog-
nized hazards that are causing or are likely to cause
death or serious physical harm to his employees.” 29
U.S.C. §$ 654(a) (1982).
Congress also authorized the Secretary to conduct in-
vestigations and on-site inspections of workplaces and to
institute enforcement proceedings for violations of
OSHA standards. (See 29 U.S.C. $$ 657 through 659,
662 (1982).) For violations of specific OSHA standards
or section 654'a!, OSHA authorizes the imposition of
civil fines ranging from $1,000 to $10,000 (29 U.S.C.
S$ 666(a) through (¢) (1982)). Criminal fines of
$10,000 may be imposed for giving unauthorized ad-
vaneed notification of an OSHA inspection or know-
ingly making false statements on any OSHA filine. (See
29 U.S.C. $8 6660e1, (f) (1982).) OSHA also provides
for prison terms of up to six months for willful viola-
tions of OSHA standards that result in an employee’s
death. 29 U.S.C. § 666(e) 1982).
The defendants read section 18/a) of OSHA (29
U.S.C. § 667(a) (19821) to mean that under it Congress
explicitly provided that the States are preempted from
asserting jurisdiction over env occupational health and
safety issue that is governed by OSHA occupational
health and safety standards unless the State obtains ap-
proval from OSHA officials te administer its own occu-
pational health and safety plan under section 18¢b).
Section 18 provides:
6a
“(a) Nothing in this chapter shall prevent any
State agency or court from asserting jurisdiction
under State law over any occupational safety or
health issue with respect to which no standard is in
effect under section 655 of this title.
(b) Any State which, at any time, desires to
assume responsibility for development and enforce-
ment therein of occupational safety and _ health
standards relating to any occupational safety or
health issue with respect to which a Federal stand-
ard has been promulgated under section 655 of this
title shall submit a State plan for the development
of such standards and their enforcement.” 29 U.S.C.
§$ 667 (1982).
The defendants state that the conduct alleged in the
indictments is governed by OSHA occupational health
and safety standards. Specifically, they claim that OSHA
standards define permissible exposure limits for the toxic
substances which allegedly injured their employees and
that OSHA also regulates the conduct that the prosecu-
tion says rendered the company’s workplace unsafe. The
defendants contend that therefore the trial court correctly
held that, because the State had not received approval
from OSHA officials pursuant to section 18(b) to prose-
cute the conduct set out in the indictments, the charges
must be dismissed. We disagree.
Contrary to this argument, we cannot say that the
language of section 18 of OSHA can reasonably be con-
strued as explicitly preempting the enforcement of the
criminal law of the States as to conduct governed by
OSHA occupational health and safety standards. The
language of section 18 refers only to a State’s develop-
ment and enforcement of “occupational health and safety
standards.” (29 U.S.C. § 667(a) (1982).) Nowhere in
section 18 is there a statement or suggestion that the
enforcement of State criminal law as to federally regu-
lated workplace matters is preempted unless approval is
obtained from OSHA officials.
Ta
The defendants argue, however, that because the charges
set out in the indictments are based on conduct related
to an alleged failure to maintain a safe work environ-
ment for their employees, in practical effect, the State is
attempting to enforce occupational health and safety
standards. They contend that the primary purpose of
punishing conduct under criminal law is to deter conduct
that society deems harmful and to secure conformity
with acceptable norms of behavior. In that way, the
criminal law establishes standards of care in society.
When applied to conduct in the workplace, the defendants
argue, criminal law serves the same purpose as OSHA,
i.e., to compel adherence to a particular standard of
safety that will minimize the risk of injury.
It is the defendants’ contention that in enacting OSHA,
Congress intended to preempt all State laws to the extent
they regulate workplace safety. They cite regulations
promulgated by the Secretary which they say so interpret
OSHA. Specifically, they note that section 1901.2 provides:
“Section 18/ai of [OSHA] is read as preventing any
State agency or court from asserting jurisdiction un-
der State law over any occupational safety or health
issue to which a Federal standard has been issued.”
29 C.F.R. §$ 1901.2 (1986).
They cite too this regulation promulgated by the Secre-
tary:
“!OSHA’s preemption provisions] apply to all state
or local laws which relate to an issue covered by a
Federal standard, without regard to whether the
state law appears to be ‘at least as effective as’ the
Federal standard.” Hazard Communication Standard,
52 Fed. Reg. 31,852, 31,860 (1987).
We cannot accept the defendants’ contention that it
must be concluded that-Congress intended to preempt the
enforcement of State criminal laws in regard to conduct
of employers in the workplace because the State criminal
8a
laws implicitly enforce occupational health and safety
standards.
Although the imposition of sanctions under State penal
law may effect a regulation of behavior as OSHA safety
standards do, regulation through deterrence, however, is
not the sole purpose of criminal law. For example, it
also serves to punish as a matter of retributive justice.
Too, whereas OSHA standards apply only to specific
hazards in the workplace, criminal law reaches to regu-
late conduct in society in general. In contrast, occupa-
tional health and safety standards are promulgated under
OSHA primarily as a means of regulating conduct to
prevent injuries in the workplace.
It is to be observed also that for-the most part OSHA
imposes strict liability for violation of its standards, and
that the criminal charges here allege that the defendants
knowingly or recklessly injured several of their employees
by unreasonably exposing them to toxic substances in the
workplace. In order to be convicted of the charges, the
State must establish that the defendants not only com-
mitted acts causing injury but that they also had the
charged mental state, i.e., that they recognized the risk
of injury and nevertheless wilfully failed to take precau-
tions to prevent injury. Thus, the criminal charges here
do not set any new or other standards for workplace
safety but rather seek to impose an additional sanction
for an employer’s conduct that, if proved, would certainly
violate the duty set out in section 654 (a) of OSHA (29
U.S.C. $ 654 (a) (1982) ),
There is nothing in the structure of OSHA or its legis-
ative history which indicates that Congress intended to
preempt the enforcement of State criminal law prohibit-
ing conduct of employers that is also governed by OSHA
safety standards. We would observe that the Supreme
Court declared in Jones v. Rath Packing Co. (1977). 430
U.S. 519, 525, 51 L. Ed. 2d 604, 614, 97 S. Ct. 1305,
1309, that “|wlhere * * * the field which Congress is said
9a
to have pre-empted has been traditionally occupied by the
States, * * * ‘we start with the assumption that the
historic powers of the States were not to be superseded
by the Federal Act unless that was the clear and mani-
fest purpose of Congress.’ ” See also Hillsborough County
v. Automated Medical Laboratories, Inc. (1985), 471 U.S.
107, 715, 85 L. Ed. 2d 714, 722-28, 105 S. Ct. 2371, 2376;
San Diego Building Trades Councii v. Garmon (1959),
399 U.S. 236, 244, 3 L. Ed. 2d 775, 782. 79 S. Ct. 773,
¢79.
Certainly, the power to prosecute criminal conduct has
traditionally been regarded as properly within the scope
of State superintendence. (See Knapp v. Schweitzer
(1985), 357 U.S. 371, 375, 2 L. Ed. 2d 1393, 1398, 78
S. Ct. 1302, 1305; Patterson v. New York (1977), 482
U.S. 197, 201, 53 L. Ed. 2d 281, 287, 97 S. Ct. 2319,
2322. The regulation of health and safety has also been
considered as “primarily, and historically” a matter of
local concern. (See Hillsborough County v. Automated
Medical Laboratories, Inc. (1985), 471 U.S. 707, 719, 85
L. Ed. 2d 714, 725, 105 S. Ct. 2371, 2378.) It cannot be
said that it was the “clear and manifest” purpose of
Congress to preempt the application of State criminal
laws for culpable conduct. of employers simply because
the same conduct is also governed by OSHA occupational
health and safety standards.
Although the provisions of OSHA are comprehensive,
that Congress, in section 18, invited the States to admin-
ister their own oecupational health and safety plans dem-
onstrates that it did not intend to preclude supplementary
State regulation. Indeed, section 651 of OSHA (29 U.S.C.
* 651 (1982)) provides that the States are “to assume
the fullest responsibility for the administration and en-
forcement of their occupational safety and health laws.”
It seems clear that the Federal interest in occupational
health and safety was not to be exclusive.
Too, considering that until the recently increased in-
terest in environmental safety charges were rarely
10a
brought under State law for conduct relating to an em-
p'oyer’s failure to maintain a safe workplace, it would be
unreasonable to say that Congress considered the pre-
emption of State criminal law when enacting OSHA.
(‘See Pratico v. Portland Terminal Co. (1st Cir. 1985),
783 F.2d 255, 266 (“Our review of the legislative history
of OSHA suggests that it is highly unlikely that Con-
gress consicered the interaction of OSHA regulations
with other common law and stautory schemes other than
worker’s compensation’’).) Indeed, OSHA provides prin-
cipally civil sanctions and only a few minor criminal
sanctions for violations of its standards. Even for wilful
violations of OSHA standards which result in an em-
ployee’s death an employer can be sentenced only to a
maximum of six months’ imprisonment. There is no pen-
alty provided for conduct which causes serious injury to
workers. It seems clear that providing for appropriate
criminal sanctions in cases of egregious conduct causing
serious or fatal injuries to employees was not considered.
Uncer these circumstances, it is totally unreasonable to
conclude that Congress intended that OSHA’s penalties
would be the only sanctions available for wrongful con-
duct which threatens or results in serious physical injury
or death to workers.
We judge that the purpose underlying section 18 was
to ensure that OSHA would create a nationwide floor of
effective safety and health standards and provide for the
enforcement of those standards. (See United Airlines,
Inc. v. Occupational Safety & Health Appeals Board
(1982), 32 Cal. 3d 762, €54 P.2d 157, 187 Cal. Rptr. 387.)
It was not fear that the States would apply more strin-
gent standards or penalties than OSHA that concerned
Congress but that the States would apply lesser ones
which would not provide the necessary level of safety.
The comment has been made: “Congress * * * sought uni-
form national standards not to facilitate commerce but to
prevent the ‘race for the bottom’ that occurred when each
state sets its own standards. Congress favored a federal
lla
law ‘so that those states providing vigorous protection
would not be disadvantaged by those that did not.’” (See
Note, Getting Away With Murder: Federal OSHA Pre-
emption of State Criminal Prosecutions for Industrial
Accidents, 101 Harv. L. Rev. 535, 550 (1987).) While
additional sanctions imposed through State criminal law
enforcement for conduct also governed by OSHA safety
standards may incidentally serve as a regulation for work-
place safety, there is nothing in OSHA or its legislative
history to indicate that Congress intended to preempt
the enforcement of State criminal law simply because of
_ its incidental regulatory effect.
A question with resemblance to the one here was be-
fore the Supreme Court in Silkwood v. Kerr-McGee
Corp. (1984), 464 U.S. 238, 78 L. Ed. 2d 443, 104 S. Ct.
615. There, the Court addressed the issue of whether
State courts are preempted under the Atomic Energy
Act from assessing punitive damages against defendants
that cause injuries by excessive radiation. In Pacific Gas
& Electric Co. v. State Energy Resources Conservation &
Development Comm’n (1983), 461 U.S. 190, 205, 75 L.
Ed. 2d 752, 765, 103 S. Ct. 1713, 1722, the Court had
held that under the Atomic Energy Act the States are
precluded from regulating the safety aspects of nuclear
energy. The defendant argued that a “State-sanctioned
award of punitive damages * * * punishes and deters con-
duct relating to radiation hazards” and therefore should
be preempted by the Atomic Energy Act. The Court up-
held the award notwithstanding the fact that it would
have an incidental regulatory effect, stating:
“In sum, it is clear that in enacting and amending
the Price-Anderson Act, Congress assumed that state-
law remedies, in whatever form they might take, were
available to those injured by nuclear incidents. This
was so even though it was well aware of the NRC’s
exclusive authority to regulate safety matters. No
doubt there is tension between the conclusion that
12a
safety regulation is the exclusive concern of the fed-
eral law and the conclusion that a State may never-
theless award damages based on its own law of lia-
bility. But as we understand what was done over the
years in the legislation concerning nuclear energy,
Congress intended to stand by both concepts and to
tolerate whatever tension there was between them.
We can do no less. It may be that the award of
damages based on the state law of negligence or strict
liability is regulatory in the sense that a nuclear
piant will be threatened with damages liability if it
does not conform to state standards, but that regula-
tory consequence was something that Congress was
quite willing to accept.” Silkiwood, 464 U.S. 238,
256, 78 L. Ed. 2d 443, 457, 104 S. Ct. 615, 625.
We note, too, that Congress expressly stated that OSHA
Was not intended to preempt two bases of liability that,
like criminal law, operate to regulate workplace conduct
and implicitly set safety standards—State workers’ com-
pensation and tort law. Section 4(b)14) of OSHA pro-
vides:
“Nothing in this chapter shall be construed to
supersece or in any manner affect any workmen’s
compensation law or to enlarge or diminish or affect
in any other manner the common law or statutory
rights, duties, or liabilities of employers and em-
ployees under any law with respect to injuries, dis-
eases, or death of employees arising out of, or in
the course of, employment.” 29 U.S.C. § 653(b) (4)
(1982),
There is little if any difference in the regulatory effect
of punitive damages in tort and criminal penalties under
the criminal law. (See Restatement (Second) of Torts
£908, comment b (1970).) We see no reason, therefore,
why what the Court declared in Silkirood should not be
applied to the preemptive effect of OSHA. Also, if Con-
gress, in OSHA, explicitly declared it was willing to
13a
accept the incidental regulation imposed by compensa-
tory damages awards under State tort law, it cannot
plausibly be argued that it also intended to preempt
State criminal law because of its incidental regulatory
effect on workplace safety.
It is a contention of the defendants that it is irrele-
vant that the State is invoking criminal law jurisdiction
as long as the conduct charged in an indictment or infor-
mation is conduct subject to regulation by OSHA. The
defendants argue that the test of preemption is whether
the conduct for which the State seeks to prosecute is in
any way regulated by Federal legislation. The defendants
assert that because the conduct charged in the indictments
is conduct regulated under OSHA, a State prosecution for
that conduct is preempted by OSHA. The contention is
not convincing.
Simply because the conduct sought to be regulated in
a sense under State criminal law is identical to that con-
duct made subject to Federal regulation does not result
in State law being preempted. When there is no intent
shown on the part of Congress to preempt the operation
of State law, the “inquiry is whether ‘there exists an
irreconcilable conflict between the federal and state regu-
latory schemes.’” (Rice v. Norman Williams Co. (1982),
458 U.S. 654, 659, 73 L. Ed. 2d 1042, 1049, 102 S. Ct.
3294, 3298-99; Huron Portland Cement Co. v. City of
Detroit (1960), 362 U.S. 440, 443, 4 L. Ed. 2d 852, 856,
80S. Ct. 813, 815; Amalgamated Association of Street,
Electric Ry. & Motor Coach Employees of America v.
Lockridge (1971\, 403 U.S. 274, 285-86, 29 L. Ed. 2d
475, 482, 91S. Ct. 1909, 1917.) A eonflict arises where
“compliance with both federal and state regulations is a
physical impossibility” (Florida Lime & Avocado Grow-
ers, Inc. v. Paul (1963), 373 U.S. 182, 142-43, 10 L. Ed.
2d 248, 257, 83 S. Ct. 1210, 1217), or when State law
“stands as an obstacle to the accomplishment and execu-
tion of the full purposes and objectives of Congress”
l4a
(Hines v. Davidowitz (1941), 312 U.S. 52, 67, 85 L. Ed.
2d 581, 587, 61S. Ct. 399, 404.
The defendants argue that the prosecutions here would
conflict with the purposes of OSHA. They say that Con-
gress intended that under OSHA the Federal government
was to have exclusive authority to set occupational health
and safety standards. The standards were to be set only
after extensive research to assure that the standards would
minimize injuries in the workplace but at the same time
not be so stringent that compliance would not be eco-
nomically feasible.( See 29 U.S.C. $ 655(b) (5) (1982).)
The defendants correctly point out that although the
States are given the opportunity to enforce their own oc-
cupational health and safety standards, the plan sub-
mitted must contain assurances that the State will develop
and enforce standards “‘at least as effective’ as OSHA’s.
(See 29 U.S.C. § 667 (1982).) Even after a State plan is
approved, the Occupational Safety and Health Adminis-
tration retains jurisdiction to enforce its own standards
until it determines, based on three years of experience,
that the State’s administration of the plan is “at least as
effective” as OSHA’s. 29 U.S.C. § 667 (1982).
The defendants maintain that Federal supervision over
State efforts to enforce their own workplace health and
safety programs would be thwarted if a State, without
prior approval from OSHA officials, could enforce its
criminal laws for workplace conduct of employers which
is also subject to OSHA standards. They say that the
States would thus be permitted to impose standards so
burdensome as to exceed the bounds of feasibility or so
Vague as not to provide clear guidance to employers.
We believe the concern of the defendants is unfounded.
We cannot see that State prosecutions of employers for
conduct which is regulated by OSHA standards would con-
flict with the administration of OSHA or be at odds with
its goals or purposes. On the contrary, prosecutions of em-
ployers who violate State criminal law by failing to main-
lda
tain safe working conditions for their employees will
surely further OSHA’s stated goal of “assur|ing] so far
as possible every working man and woman in the Nation
safe and healthful working conditions.” (29 U.S.C. § 651
(b) (1982).) State criminal law can provide valuable and
forceful supplement to insure that workers are more ade-
quately protected and that particular egregious conduct
receives appropriate punishment.
The defendants’ statements that the State will now
have the ability to enforce more stringent standards than
OSHA’s does not persuade. As stated, the charges here
are based on the defendants’ alleged willful failure to
remove workplace hazards which create a_ substantial
probability that they will cause injuries to their employ-
ees. Thus, employers are not left without guidance as to
What standard of care they must meet. Too, in practical
terms, if a defendant were in compliance with OSHA
standards it is unlikely that the State would bring prose-
cutive action. Enforcement of State criminal law in the
workplace will not “stand as an obstacle to the accom-
plishment and execution of the full purposes and objec-
tives of Congress.” Hines v. Davidowitz (1941), 312 U.S.
52, 67, 85 L. Ed. 581, 587, 61 S. Ct. 399, 404.
To adopt the defendants’ interpretation of OSHA would,
in effect, convert the statute, which was enacted to create
a safe work environment for the nation’s workers, into
a grant of immunity for employers responsible for serious
injuries or deaths of-employees. We are sure that that
would be a consequence unforeseen by Congress.
The question here has been considered by a few courts.
The appellate court of Wisconsin in State ex rel. Cornel-
lies v. Black (Wis. App. 1988), 144 Wis. 2d 745, 425
N.W.2d 21, held that the State’s authority to enforce
its criminal laws in the workplace has not been preempted
by OSHA. The court stated:
“There is nothing in OSHA which we believe indi-
cates a compelling congressional direction that Wis-
16a
consin, or any other state, may not enforce its homi-
cide laws in the workplace. Nor do we see any con-
flict between the act and sec. 940.06, Stats. To the
contrary, compliance with federal safety and health
regulations is consistent, we believe, with the dis-
charge of the state’s duty to protect the lives of em-
ployees, and all other citizens, through enforcement
of its criminal laws. Wisconsin is not attempting to
impose a penalty for violation of any safety regula-
tions. It is only attempting to impose the sanctions
of the criminal code upon one who allegedly caused
the death of another person by reckless conduct. And
the fact that that conduct may in some respects vio-
late OSHA safety regulations does not abridge the
state’s historic power to prosecute crimes.” (144 Wis.
2d at 755, 425 N.W.2d at 25.)
(A divided court held to the contrary in People v. Hege-
dus (1988), 169 Mich. App. 62, 425 N.W.2d 729, leave to
appeal granted in part (1988), 431 Mich. 870, 429 N.W.
2d 598, citing the opinion of our appellate court in this
case (157 Ill. App. 3d 797), also held contra.)
We would note that on September 27, 1988, the con-
gressional committee on government operations approved
and adopted a report on the question of whether State
criminal prosecutions for workplace safety violations are
preempted by OSHA. The committee concluded that in-
adequate use has been made of the criminal penalty pro-
visions of the Act and recommended to Congress that
“OSHA should take the position that the States have
clear authority under the Federal OSH Act, as it is
written, to prosecute employers for acts against their
employees which constitute crimes under State law.” Re-
port of House Comm. on Government Operations, Getting
Away with Murder in the Workplace: OSHA’s Nonuse
of Criminal Penalties for Safety Violations, H.R. Rep.
No. 1051, 100th Cong., 2d Sess. 9 (1988).
The People as supplemental authority cite a letter
from the Department of Justice to the chairman of the
17a
committee. The letter of the Department of Justice,
responding to the report, states in part that the Depart-
ment shared the concerns of the committee as to the ade-
quacy of the statutory criminal penalties provided for
violations of OSHA and also observes:
“As for the narrower issue as to whether the crimi-
nal penalty provisions of the OSH Act were intended
to preempt criminal law enforcement in the work-
place and preclude the States from enforcing against
employers the criminal laws of general application,
such as murder, manslaughter, and assault, it is our
view that no such general preemption was intended
by Congress. As a general matter, we see nothing in
the OSH Act or its legislative history which indica‘es
that Congress intended for the -relatively limited
criminal penalties provided by the Act to deprive
employees of the protection provided by State criminal
laws of general applicability.”
The defendants offered supplemental authorities also,
arguing that the Department’s view was not entitled to
deference and was not binding on a court. It, of course,
does not bind a court and, whether entitled to deference
or not, it is certainly not inappropriate to note that the
view of the governmental department charged with the
enforcement of OSHA is also the view of this court.
In view of our holding that the State is not pre-
empted from conducting presecutions, we need not ad-
dress the defendants’ motion to strike portions of the
State’s brief and certain grand jury testimony.
For the reasons given, the judgments of the appellate
court and circuit court are reversed and the cause is re-
manded to the circuit court of Cook County for further
proceedings.
Judgments reversed;
cause remanded.
18a
APPENDIX B
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
86-0014
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellant,
VS.
CHICAGO MAGNET WIRE CORPORATION, an Illinois
corporation, ANTHONY JORDAN, KEVIN KEANE,
GERALD COLBY, ALLAN SIMON and FRANK ASTA,
Defendants-Appellees.
Appeai from the Circuit Court of Cook County
Honorable Earl E. Strayhorn, Judge Presiding
JUSTICE O’CONNOR delivered the opinion of the court:
This is an appeal from an order of the circuit court
of Cook County dismissing various indictments and _ in-
formation against Chicago Magnet Wire Corporation
(CMW), and five corporate officials, Anthony Jordan,
Kevin Keane, Gerald Colby, Allan Simon, and Frank
Asta. The sole issue on appeal is whether state criminal
prosecutions based on conditions in the workplace are
preempted by the Occupational Safety and Health Act
of 1970 (OSHA) (29 U.S.C. § 651 et seg. (1982).) We
affirm.
On June 26, 1985, the Grand Jury of Cook County
voted indictments against CMW and five of its corporate
19a
officials, charging each with multiple counts of aggra-
vated battery and reckless conduct pursuant to Il. Rev.
Stat. 1985, ch. 38, pars. 12-4(a) and (c) and 12-5 and
with violating the conspiracy statute. II] Rev. Stat. 1985,
ch. 38, par. 8-2(a).
One set of aggravated battery indictments, charging
a violation of Ill. Rev. Stat. 1985, ch. 38, par. 12-4/(a),
alleged that CMW and the individual defendants, while
acting in their official capacity, exposed the named em-
ployees to numerous federally regulated substances in
the workplace; failed to provide necessary safety in-
structions and equipment and health monitoring systems
in the workplace; provided inadequate ventilation in the
workplace and maintained dangerously overheated work-
ing conditions while the employees were exposed to the
federally regulated substances. It was alleged that as a
consequence of these acts, defendants violated their duty
to provide a safe workplace for employees and caused
great bodily harm to the named employees with the con-
scious awareness that a substantial probability existed
that their acts would cause great bodily harm.
The second set of aggravated battery indictments
alleged that CMW and the individual defendants know-
ingly committed acts which would cause named employees
to take by deception and for other than medical purposes
federally regulated substances and that such acts harmed
the employees in violation of Ill. Rev. Stat. 1985, ch. 38,
par. 12-4/c).
The reckless conduct charges alleged that defendants,
in conducting the business of coating wire, grossly de-
viated from the standard of care which a_ reasonable
employer would exercise in the same situation and there-
by violated their duty to provide a safe workplace in
violation of Ill. Rev. Stat. 1985, ch. 38, par. 12-5.
The conspiracy indictment charged both CMW = and
the individual defendants with conspiring against the
20a
named employees with the intent to commit aggravated
battery in violation of Ill. Rev. Stat. 1985, ch. 38, par.
8-2/a).
Defendants filed a joint motion to dismiss and on
December 13, 1985, the court dismissed all charges
against them, finding that OSHA preempted Illinois
from applying Illino's criminal law to conduct involving
federally regulated occupational safety and health issues
within the workplace. The State filed various informa-
tions which were dismissed on the same basis and this
appeal followed.
~ The State contends that the indictments should be
reinstated as the prosecutions were undertaken in pur-
suance of the state’s police power which was neither
expressly nor impliedly preempted by Congress. The
defendants contend that the criminal charges are ex-
pressly preempted by OSHA and that the dismissal of
the charges should be affirmed.
State laws are preempted when Congress has declared
its intent, either explicitly or implicitly, to occupy a
certain area of law. (Silkwood v. Kerr-McGee Corp.
(1984), 464 U.S. 238, 248, 78 T7Ed. 2d 443, 104 S. Ct.
615; Jones v. Rath Packing Co. (1977), 430 U.S. 519,
925, 51 L. Ed. 2d 604, 97 S. Ct. 1305.) Where pre-
emptive intent is not expressly stated in the statute, the
intent of Congress must be derived from the statutory
language, from the comprehensiveness of the regulatory
scheme, from the legislative history of the statute, or
from the fact that the Federal and State statutes at issue
conflict. (See Hillsborough County, Florida v. Auto-
mated Medical Labcratovies (1985), US. , 8d
L.Ed. 2d 714, 105 S. Ct. 2371.) In our view, the com-
prehensiveness of the Occupational Safety and Health
Act, in conjunction with the fact that the states have
been afforded the opportunity to develop their own regu-
latory schemes, evidences a Congressional intent to pre-
empt the State from applying its criminal statutes to
2la
conditions in the workplace that are specifically regulated
by OSHA.
Congress enacted OSHA in 1970 “to assure so far as
possible every working man and woman in the Nation
safe and healthful working conditions and to preserve
our human resources.” (29 U.S.C. sec. 651(b) (1982).)
Section 655 of the Act expressly provides for~the adop-
tion of Federal standards of industrial safety, and while
the Federal standards are given primacy under the stat-
ute, the states are permitted to exercise independent
State action under certain circumstances.
A State agency may assert jurisdiction over an occu-
pational safety or health issue if there is no Federal
standard in effect (29 U.S.C. sec. 667 (a)), or a State
may submit its own enforcement plan to the United
States Secretary of Labor for approval pursuant to 29
U.S.C. sec. 667(b). In the absence of a State plan which
has been approved by the Secretary of Labor, State laws
related to working conditions regulated by OSHA are
preempted.
The preemptive effect of section 667(b) was recognized
by the Illinois Supreme Court in Stanislawski v. Indus-
trial Commission (1983), 99 Ill. 2d 36, 39-40, 457 N.E.
2d 399, in which the court stated that under OSHA. “the
only method by which a State may assume responsibility
for development and enforcement of safety and health
standards with respect to which Federal standards have
been adopted” is through an approved State plan under
the Act. (See also United Air Lines, Inc. v. Occupational
Safety & Health Appeals Board (1982), 32 Cal. 3d 762,
772, 654 P.2d 157 (a State is preempted from regulating
matters governed by OSHA standards in the absence of
the adoption of a federally approved State plan); Five
Migrant Farmworkers v. Hoffman (1975), 136 N.J.
Super. 242, 247, 345 A.2d 378, (OSHA supersedes all
State laws with respect to general working conditions) .)
22a
Illinois submitted a State plan, but it was withdrawn
on June 30, 1975. (See Stanislawski v. Industrial Com-
mission (1983), 99 Ill. 2d 36, 39, 457 N.E.2d 399.) The
State’s position, however, is that it was under no obliga-
tion to comply with section 667(b) by developing a State
plan in order to prosecute defendants under State crim-
inal laws. The State argues that the preemptive effect
of sections 667(a) and (b) is limited to State adminis-
trative schemes, such as the one at issue in Stanislawski,
which duplicate OSHA’s regulation of health and safety
standards, but that it was not intended to extend to state
criminal laws as they might apply in the workplace.
The main thrust of the State’s argument is that the
prosecutions at issue here are not preempted because
they are based on the application of general criminal
laws rather than on the enforcement of specific work-
place health and safety regulations. To support its asser-
tion that Congress explicitly intended to leave preexisting
State criminal laws undisturbed, the state cites section
653(b) (4) of the Act which provides:
Nothing in this chapter shall be construed to super-
sede or in any manner affect any workman’s com-
pensation law or to enlarge or diminish or affect
in any other manner the common law or statutory
rights, duties, or liabilities of employers and em-
ployees under any law with respect to injuries, dis-
eases, or death of .employees arising out of, or in
the course of, employment. 29 U.S.C. § 653(b) (4)
(1982).
In our view, this section of the Act does not permit
the State to prosecute conduct or conditions in the work-
place under State criminal laws in so far as the conduct
or conditions are regulated by OSHA. The courts which
have interpreted section 653(b)(4) have consistently
found that the purpose of this section was to preserve
the existing private rights of injured employees relative
to workman’s compensation, State tort law, and other
23a
common law remedies against employers but not to
create any additional civil remedies in favor of employ-
ees. See, e.g, Johnson v. Koppers Co. Ine. (N.D.Ohio
1981), 524 F.Supp. 1182, 1189, appeal dismissed (6th
Cir. 1982), 705 F.2d 454; United Steelworkers of Amer-
tea v. Marshall (D.C. Cir. 1980), 647 F.2d 1189, 1235-
36, cert. denied (1981), 453 U.S. 913; Berardi v. Getty
Refining & Marketing Co. (1980), 435 N.Y.S.2d 212,
215-216, 107 Mise. 2d 451.
The determinative factor is not whether the State is
seeking to enforce a criminal law of general application
rather than specific workplace health and safety regula-
tions but what conduct the state is seeking to regulate.
(‘See NDK Corp. v. Local 1550 of the United Food and
Commercial Workers International Union (1984), 128
Ill. App. 3d 207, 470 N.E.2d 565.) The State would not
be foreclosed from applying its criminal laws in the
workplace if the prosecutions charged the defendants
with crimes not involving working conditions. The con-
duct the State seeks to regulate here, however, as evi-
denced by the language of the indictments, is conduct
~ related to working conditions now regulated by OSHA.
We therefore believe that the trial court properly found
that the prosecutions were preempted.
The State’s reliance on Silkwood v. Kerr-McGee Corp.
(1984), 464 US. 238, 78 L. Ed. 2d 443, 104 S. Ct. 615, is
misplaced. In Si/kwood, the Supreme Cow: reversed a
Court of Appeals decision which held that the Atomic
Energy Act, and the Nuclear Regulatory Commission
established by it, preempted State law and_ precluded
an award of punitive damages for injuries caused by
exposure to radiation. The Supreme Court held that the
award of punitive damages under State tort law was not
preempted in that allowing a plaintiff to recover for
injuries caused by nuclear hazards was not inconsistent
with the Federal regulatory scheme developed by the Nu-
clear Regulatory Commission. Silkwood v. Kerr-McGee
24a
Corp. (1984), 464 U.S. 239, 257-58, 78 L.Ed.2d 443, 104
S.Ct. 615.
Silkwood was decided under the Atomic Energy Act,
to which OSHA does not apply. In addition, the Court
in Silkwood distinguished between “state regulation of
the safety aspects of nuclear energy,” which was held
preempted, and State law to compensate injured persons,
which the Court held was not preempted. Here, although
the State characterizes its purpose as punitive and deter-
rent and therefore permissible under Silkwood, in fact it
seeks to regulate occupational safety and health through
the application of criminal laws, which is impermissible
under section 18(b) of OSHA. 29 U.S.C. § 667(b)
(1982).
The State has expressed valid and legitimate concerns
about the consequences of preemption on its ability to
control the activities of employers. But Congress has
evidenced an intent that criminal sanctions should not
be imposed for activities involving workplace health and
safety except in highly limited circumstances, and that
health and safety requirements should be established
through standard-setting, which provides employers with
clear and detailed notice of their legal obligations. IlIli-
nois’ view that employers may be held criminally liable
for workplace injuries or illness, regardless of their
compliance with OSHA standards, would lead to piece-
meal and inconsistent prosecutions of regulatory viola-
tions throughout the states, a result that Congress sought
to preclude in enacting OSHA.
For the foregoing reasons, we affirm the decision of
the circuit court of Cook County dismissing the indict-
ments against Chicago Magnet Wire and its corporate
officers.
Judgment affirmed.
CAMPBELL and BUCKLEY, J.J., concur.
25a
APPENDIX C
STATE OF ILLINOIS )
) ss
COUNTY OF CooK )
IN THE CIRCUIT COURT OF COOK COUNTY
COUNTY DEPARTMENT—CRIMINAL DIVISION
Indictment Nos. 85 7741, 77
7743, 77
7745, 77
T7747
Charge: Aggravated Battery
THE PEOPLE OF THE STATE OF ILLINOIS
VS.
CHICAGO MAGNET WIRE CoRP.,
ANTHONY JORDAN, KEVIN KEANE, GERALD COLBY,
ALLAN SIMON, FRANK ASTA
Before JUDGE EARL E. STRAYH
December 13, 1985
Court convened pursuant to adjournment.
PRESENT:
Hon. RICHARD M. DALEY
State’s Attorney of Cook County
by Mr. Glen C. Sechen and
Ms. Lynn Worlay
Assistant State’s Attorneys
appeared on behalf of the People;
26a
Mr. Patrick Tuite
appeared on behalf of Kevin Keane,
Mr. George Catsirilas and
Mr. Robert Stevenson
appeared on behalf of Chicago Magnet Corp.,
‘Mr. Harvey Silets
appeared on behalf of Anthony Jordan
Mr. William J. Martin
appeared on behalf of Gerald Colby,
Al Simon and Frank Asta.
CLERK: State of Illinois versus Chicago Magnet
Wire Corp.
MS. WORLAY: Good morning, Lynn Worlay, Assist-
ant State’s Attorney.
MR. TUITE: I'm Patrick Tuite on behalf of Mr.
Kevin Keane, who is present in Court.
MR. CATSIRILAS: George Catsirilas and Robert
Stevenson on behalf of Chicago Magnet Wire Corp.
MR. SILETS: Harvey Silets on behalf of Anthony
Jordan.
MR. MARTIN: William J. Martin on behalf of Mr.
Colby, Asta, and Simon.
THE COURT: Either side have anything else they
wish to offer over and above what has already been
presented?
MR. SECHEN: .No, sir, we do not, other than re-
minding the Court of the motions that we made with
respect to amending, and motion to strike the affidavit.
THE COURT: Motion to strike the affidavit is denied.
MR. SECHEN: Thank you, Judge.
THE COURT: Motion to amend—what was that mo-
tion to amend?
MR. SECHEN: The clerical error in the indictment
with respect
THE COURT: Allowed.
27a
MR. SECHEN: Thank you.
THE COURT: All right.
I'll render my ruling on the motion to dismiss.
The extended December, 1984 Grand Jury of Cook
County has indicted the defendants, corporation, individ-
ual corporate officers and management persons in seven
indictments, each with multiple counts alleging aggra-
vated battery, wreckless conduct, and conspiracy to com-
mit aggravated battery.
The foundational under, pending all of the charges is
that the defendants corporation is charged, officers and
named managers in conducting their business, to-wit, a
manufacturing plant, which engaged in the business of
coating wire with various chemical compounds, and while
under the duty to provide a safe work place, and with
an awareness that a substantial probability existed which
would cause employees of the defendants business to,
“take by deception for other than medical purposes, poi-
sonous and stupifying substances, to-wit, substances in-
cluding not but not limited to: Trichloroethylene, xylene,
eresol, phenol, n-methyl-2-tyrrolidon, 4-methyl-2-tenpon
ketone, urethane, polyvinyl chloride, toluene diisocyana
aluminum dust, copper dust and naphta—that’s all over
with, to their employees—to their employees.
It is alleged that defendants employees were harmed
by exposing them to poisonous and stupifying substances
by way of inhallation and skin absorption and by failing
to provide necessary safety instructions, safety equip-
ment, and by maintaining an unsafe work place.
The defendants are alleged to have acted knowingly
and wilfully.
The defendants have filed consolidated motions to dis-
miss all charges, asserting that: 1, Federal Law pre-
empts the application of State law to questions arising
out of issues of work place safety, where Federal stand-
ards have been set.
2, the charges do not state indictable offenses.
28a
3, the conspiracy and aggravated battery Statutes, as
applied to defendants’, alleged conduct, violate their due
process rights.
4, there was insufficient evidence adduced before the
Grand Jury to support the return of the indictment.
The parties have each submitted memoranda of opin-
ion and authority in supoprt of their respective motions.
And in addition, the Court has heard each side in oral
arguments.
The Court finds, it has jurisdiction over the parties
and of the subject matter.
With respect to their assertion of Federal preemption,
the defendants’ motion raises questions of Federal! Con-
stitutional import. They allege that the action of the
prosecution in securing the return of these indictments,
constitutes, “the indiscriminate and arbitrary prosecu-
tion of Illinois corporations and corporate officials for
conduct arising from a Federally regulated industrial
work environment.”
The prosecution disputes this contention, saying, the
erimes herein charged, are not regulatory in nature, but
malum inse. Malum, M-A-L-U-M I-N-S-E, two words.
And are, therefore, outside the pale of Federal regula-
tion and clearly permissible under a State’s right to ex-
ercise its police powers, to frame the issue more clearly.
The questions presented by this case can be stated
thusly: 1, can a State regulate the operation of a work
place where the Federal Government has undertaken to
legislate in this area?
2, can a State assert criminal jurisdiction over individ-
uals within its borders for inducing work related in-
juries through conduct in the industrial work environ-
ment, although, such conduct is in accord with Federally
mandated work place standards?
Federal preemption has its Genesis in Article 6, Clause
2 of the United State’s Constitution, which states: “This
Constitution and the laws of the United States, which
shall be made in pursuance, thereof, and all safety made
29a
or which shall be made under the authority of the United
States shall be the Supreme Law of the lands, and the
Judges in every State shall be bound. Thereby, anything
in the Constitution or Laws of any State to the contrary,
notwithstanding.”
Semi-final question to be decided in a determination of
preemption is congenial intent, where Congress through
expressed intent, sets forth in the Statute, asserts an in-
tention to legislate in a particular area and establish
standards, preemption occurs.
In 1970, Congress enacted the Occupationa! Safety
and Health Act. The purpose of the act was to insure
healthful and safe conditions in the industrial work
places in our country.
The Statute requires among other things, that the
United States Secretary of Labor estabiish health stand-
ards concerning the use of toxic materials or harmful
physical agents on the industria! work floor.
The Statute also provides for Civil and Criminal penal-
ties for intentional violations of safety and health rules.
Congress further limited State action in the area of
occupational health and safety to severely restricted
areas, that is, where no Federal standard is established.
With respect to any occupational hea!th issue a State
may assert jurisdiction over that issue.
However, the Federal standards have been set. A State
is precluded from exerting jurisdiction over the issue,
unless it has been submitted and had approved by the
United States Secretary of Labor, an enforcement plan.
Iilinois has not had approved any State enforcement
plan respecting toxic materials or harmful! substances.
As to the doctrine of preemption, which is a well rec-
ognized principle in Federal Law, our State Supreme
Court has spoken.
In Stanislowski versus the Industrial Commission, 88
Illinois, 2nd, 36, 457 Northeast, 2nd, 388, decided in
1973.
30a
The Illinois Industrial Commission in denying an
award, ruled, “by reason of the enactment of the Oc-
cupational Safety and Health Act, all States’ enforce-
ment of industrial safety laws, is preempted.”
In affirming the commission, our Illinois Supreme Court
through Mr. Justice Goldenhirst, stated, and I quote: In
view of our holding that the adoption of standards was
preempted, and that no plan was adopted under which
the State would assume jurisdiction, there was no stand-
ard in force and effect, the commission correctly held
that the matter was preempted.”
OSHA having set standards governing the use of toxic
materials and harmful substances in the work place and
Illinois being bereaved of any approved standards in this
area, People of the State of Illinois are precluded from
exercising Criminal jurisdiction over defendants in the
manner attempted here under, under the reciprocity
clause of the United States Constitution.
And defendant’s motion to quash each of these indict-
ments is—and the same, is hereby sustained.
Having ruled on this matter, on the basis of Federal
preemption, the Court expresses no opinion regarding the
issue of due process, or the sufficiency of the indictments
to state a cause of action or prosecutorial misconduct.
Other matters which were asserted by the defendants as
being a basis for a motion to dismiss.
The defendants are, hereby, discharged, and their bond
is exonerated.
lil
3la
APPENDIX D
Ill. Rev. Stat. ch. 38, § 8-2. Conspiracy
(a) Elements of the offense. A person commits con-
spiracy when, with intent that an offense be committed,
he agrees with another to the commission of that offense.
No person may be convicted of conspiracy to commit an
offense unless an act in furtherance of such agreement
is alleged and proved to have been committed by him or
by a co-conspirator.
(b) Co-conspirators.
It shall not be a defense to conspiracy that the person
or persons with whom the accused is alleged to have con-
spired:
(1) Has not been prosecuted or convicted, or
(2) Has been convicted of a different offense, or
(3) Is not amenable to justice, or
(4) Has been acquitted, or
(5) Lacked the capacity to commit an offense.
(c) Penalty.
A person convicted of conspiracy may be fined cr im-
prisoned or both not to exceed the maximum provided
for the offense which is the object of the conspiracy, ex-
cept that if the object is an offense prohibited by Sections
11-15, 11-16, 11-17, 11-19, 24-1(a) (1), 24-1(a) (7), 28-1.
28-3 and 28-4 of the “Criminal Code of 1961”, approved
July 28, 1961, as amended or prohibited by Sections 401,
402, 403, 404, 406(b) or 407 of the “Illinois Controlled
Substances Act’’, enacted by the 77th General Assembly,'
or an inchoate offense related to any of the aforesaid
principal offenses the person convicted may be impris-
oned not to exceed 10 years: Provided, however, that no
penalty for conspiracy to commit treason, murder, or
32a
aggravated kidnapping shall exceed imprisonment for 20
years, and no penalty for conspiracy to commit any of-
fense other than those specified in this subsection shall
exceed imprisonment for 5 years. Laws 1961. p. 1983,
8 8-2, eff. Jan. 1, 1962. Amended by Laws 1965, p. 406,
$1, eff. July 1, 1965; P.A. 77-772, $ 1. :
Ill. Rev. Stat. ch. 38, § 12-4. Aggravated Battery
(a) A person who, in committing a battery, inten-
tionally or knowingly causes great bodily harm, or per-
manent disability or disfigurement commits aggravated
battery.
(b) A person who, in committing a battery either:
(1) Uses a deadly weapon;
(2) Is hooded, robed or masked, in such manner as to
conceal his identity;
(3) Knows the individual harmed to be a teacher or
other person employed in any school and such teacher or
other employee is upon the grounds of a school or grounds
adjacent thereto, or is in any part of a building used for
school purposes;
(4) Knows the individual harmed to be a supervisor,
director, instructor or other person employed in any park
district and such supervisor, director, instructor or other
employee is upon the grounds of the park or gounds ad-
jacent thereto, or is in any part of a building used for
park purposes;
(5) Knows the individual harmed to be a caseworker
or other person employed by the State Department of
Public Aid or a County Department of Publie Aid and
such caseworker, investigator, or other person is upon
the grounds of a Public Aid office or grounds adjacent
thereto, or is in any part of a building used for Public
Aid purposes, or upon the erounds of a home of a public
aid applicant, recipient, or any other person being inter-
33a
viewed or investigated in the employee’s discharge of his
duties, or on grounds adjacent thereto, or is in any part
of a building in which the applicant, recipient, or other
such person resides or is located:
(6) Knows the individual harmed to be a peace officer,
or a person summoned and directed by him, or a ecorrec-
tional officer, while such officer is engaged in the execu-
tion of any of his official duties including arrest cr at-
tempted arrest;
(7) Knows the individual harmed to be a fireman en-
gaged in the execution of any of his official duties:
(8) Is, or the person battered is, on cr about a public
way, public property or public place of accommodation
or amusement; or
(9) Knows the individual harmed to be the driver. op-
erator, employee or passenger ‘of any transportation fa-
cility or system engaged in the business of transporta-
tion of the public for hire and the individual assaulted
is then performing in such capacity or then using such
public transportation as a passenger or using any area
of any description designated by the transportation fa-
cility or system as a vehicle boarding, departure, or
transfer location commits aggravated baitery.
(c) A person who administers to an individual or
causes him to take, without his consent or by threat or
deception, and for other than medical purposes, any in-
toxicating, poisonous, stupefying, narcotic or anesthetic
substance commits aggravated battery.
(d) Sentence.
Aggravated battery is a Class 3 felony.
Ill. Rey. Stat. ch. 38, § 12-5. Reckless Conduct
(a) A person who causes bodily harm to or endangers
the bodily safety of an individual by any means, com-
34a
mits reckless conduct if he performs recklessly the acts
which cause the harm cr endanger safety, whether they
otherwise are lawful or unlawful.
(b) Sentence.
Reckless conduct is a Class A misdemeanor.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.