Opposition Brief — Asta v. Illinois

. | Supreme Court, U.S.

(i) ' FILED

JUN 29 1989

No. 88-1783

F. SPANIOL, JR,

OLRRK a

In Tue

Supreme Court of the Anited States

Ocrosex TERM, 1988

FRANK ASTA, et al,

Petitioners,

Vv.

STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Ceritiorari

To The Supreme Court Of Illinois

RESPONDENT'S BRIEF IN OPPOSITION

NEIL F. HARTIGAN

Attorney General, State of Illinois

TERENCE M. MADSEN

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

Attorneys for Respondent

CECIL A. PARTEE

State’s Attorney of Cook County

620 Richard J. Daley Center

Chicago, Illinois 60602

(312) 443-5489

JAY C. MAGNUSON

FRANK J. PARKERSON *

Assistant State’s Attorneys

Of Counsel * Counsel of Record

a

Midwest Law Printing Co., Chicago 60611, (312) 321-0220 is

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................

SUMMARY OF ARGUMENT ................

"PROM UMEIGEEE Nok 0 6554 ANCES

THIS CASE, HAVING BEEN DISMISSED PRIOR

TO ANY. FACTUAL HEARING ON ITS MERITS,

IS INSUFFICIENTLY DEVELOPED FOR CON-

SIDERATION BY THIS COURT AT THIS TIME .

II.

THE FEW CASES WHICH HAVE ARISEN IN

THIS AREA, MOST OF WHICH HAVE NOT YET

REACHED THE COURTS OF LAST RESORT IN

THEIR RESPECTIVE JURISDICTIONS, ARE

BOTH FACTUALLY DISTINGUISHABLE, AND

AT THE SAME TIME, NOT ALL IRRECONCIL-

ABLY INCONSISTENT IN PRINCIPAL FROM

THE DECISION OF THE COURT BELOW. TIME

IS NEEDED FOR FURTHER DEVELOPMENT

OF THE LAW IN THIS AREA BY THE SEV-

EMG EMA 6 CkR ES Wee Eee Sue SPEC ES ES oON

Ill.

SINCE FULLY ONE-HALF OF THE CHARGES

MAY NOT EVEN BE SUBJECT TO THE PREEMP-

TION ARGUMENT, A GRANT OF CERTIORARI

AT THIS TIME WOULD BE PREMATURE ..

IV.

THE ISSUE OF WHETHER THE STATES MAY

PROSECUTE CRIMES OCCURRING IN THE

WORKPLACE, IN THE EXERCISE OF THEIR

12

ii

HISTORIC POLICE POWERS, OR WHETHER

THE OCCUPATIONAL SAFETY AND HEALTH

ACT, AN ACT PRIMARILY CONCERNED WITH

THE PROMOTION OF WORKER SAFETY, PRE-

EMPTS SUCH PROSECUTIONS, IS NOT A

CLOSE QUESTION, AND WAS CORRECTLY RE-

SOLVED AGAINST SUCH PREEMPTION BY

THE SUPREME COURT OF ILLINOIS ......

A. Viewed In Context, The OSH Act Neither

Expressly Nor Impliedly Preempts Prosecu-

tion By The States Of Crimes Occurring In

ED wa 0.00 KeSea web eRRSA oH OS

(1) Congress Did Not Expressly Preempt

State Criminal Prosecution Of Offenses

Occurring In The Workplace .......

(2) Since The Primary Purpose Of Con-

gress, When Enacting OSHA, Was The

Promotion Of Safe And Healthful Work-

ing Conditions For The Workers Of

America, Congress Could Not Have In-

tended To Accomplish Its Objective By

Immunizing Those Few Unscrupulous

Employers Who Knowingly Commit

Crimes Against Those Workers, And

The Doctrine Of Implied Preemption Is

Therefore Inapplicable .............

CONCLUSION ..... WAREARAGE KA RREVE RS LS ROR OS

IS Scns on sb bce co s058 0h 5% sine

13

13

20

22

28

iil

TABLE OF AUTHORITIES

CASES: PAGE(S)

American Federation of Labor and Congress of In-

dustrial Organizations, Industrial Union Dept.

v. Marshall, 570 F.2d 1030 (D.C. Cir. 1978) ..

American Smelting and Refining Co. v. O.S.H.R.C.,

501 F.2d 504 (8th Cir. 1974) ..............

Anning-Johnson Co. v. O.S.H.R.C., 516 F.2d 1081

Fe RE ETRE Kc Sis kdeewid eR Aea Ras eRe

Coiorado v. Kelran Construction, Inc., 13 OSHC

1898 (Dist. Ct. Colo. Oct. 6, 1988) .........

Fidelity Federal Savings and Loan Assn. v. De La

Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.

ee SE oss Riss BAe ener Re eR AES URS

Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 1382, 83 S.Ct. 1210, 10 L.Ed. 2d 248

aa RGA PSU PER pope re poregiep Ryne ny tae iar g aU ete re

H.P. Welsh Co. v. New Hampshire, 306 U.S. 79,

59 S.Ct. 438, 88 L.Ed. 500 (1959) .........

Hillsborough County v. Automated Medical Labora-

tories, Inc., 471 U.S. 707, 105 S.Ct. 2371, 85

Re DS er err ee

Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85

Rae EE Sia ee onan ask eee tea bake

Huron Portland Cement Co. v. City of Detroit,

Michigan, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.

oe 8 Ree errr ee errr poe

Jones v. Rath Packing Company, 430 U.S. 519, 97

S.Ct. 1805, 51 L.Ed. 2d 604 (1977) ........

15, 16

15

15

18, 19

20

20

18, 25

19

26

iv

Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302,

oe ee Be eens

Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct.

2114, 68 L.Ed. 2d 576 (1981) ..............

Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726,

OO Tame Oe CAE ha ww ehh eve ee eae becouse

Pacific Gas & Electric Company v. State Energy

Resources Conservation & Development Com-

mission, 461 U.S. 190, 108 S.Ct. 1713, 75 L.

Be Oe MED Vek oc ins oka seek ae va esas

Patterson v. New York, 482 U.S. 197, 97 S.Ct.

2319, 53 L. Ed. 2d 281 (1977) .............

People v. Alejos, 97 Ill. 2d 502, 455 N.E. 2d 48,

Fes RE gah kd ce rk Sabeeheccues

People v. Bradley, 79 Ill. 2d 410, 403 N.E. 2d 1029

CRE nai h4 aa Rae ere swe eve ren eek aku aees

People v. Coleman, 111 Ill. 2d 87, 488 N.E. 2d 1009

we eee

People v. Hegedus, 169 Mich. App. 62, 425 N.W.

2d 729 (1988); leave to appeal granted in 429

N.W. 2d 593 (Mich. 1988) ............... 8,

Puffer’s Hardware, Inc. v. Donovan, 742 F. 2d 12

RG Sees EE Gk bnkas seen neees cen heauayas

Rice v. Norman Williams Co., 458 U.S. 654, 102

S.Ct. 3294, 73 L.Ed. 2d 1042 (1982) .......

Rice v. Santa Fe Elevator Corporation, 331 U.S.

218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) .. 18,

RMI Co. v. Secretary of Labor, 594 F.2d 566 (6th

Ca; WM pn aks Sek esuuashcsaecceea sees

Sabine Consolidated, Inc., v. Texas, 756 S.W. 2d

ee Pe ey rrr

19

20

10, 11

26

19, 20

15

V

Sedima S.P.R.L. v. Imrex Company, Inc., 473 U.S.

479, 105 S.Ct. 3275, 87 L. Ed. 2d 346 (1985) . 14

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104

S.Ct. 615, 78 L.Ed. 2d 443 (1984) ......... 24, 26

Smith v. Western Electric Co., 643 S.W. 2d 10 (Mo.

PT Se | | Bere rere ery etre ee Tere 24

Stanislawski v. Industrial Commission, 99 Ill. 2d

36, 457 N.E. 2d 399, 75 Ill. Dec. 405 (1983) .. 7,8

State ex rel. Cornellier v. Black, 144 Wis. 2d 745,

425 N.W. 2d 21 (Wis. App. 1988) .......... 27

Taylor Diving and Salvage Co., Inc. v. United

States Department of Labor, 599 F.2d 622 (5th

CEE. chr neko en cece eesat bh eewnee eee 15

Thornock v. State, 745 P. 2d 324 (Mont., 1987) .. 8

United Airlines, Inc., v. Occupational Safety &

Health Appeals Board, 32 Cal. 3d 762, 654 P.2d

157, 187 Cal. Rptr. 387 (1982) ............. 16

STATUTES:

ae ede oe ee 14, 15

Ne ogy", Ts SAA BSI Rae pes ampere phar bess 15, 16

Le Ce RRR Sects Ma Rae teria gata! 18

Te Se ee ask ee 16, 20, 25

OE hee Re a sae seer eas 24

Oat Se. ee eee eee: 21, 25

OS TEC BS gc ccc cca ccacdvircvess 20, 24, 25

OE BI oc ah oh cis eee vs 15, 21

Oe TS I a oss ce ope nsscaeedacras 15, 16

ee op a eh ee eg 7

ili, Rev. Stat., 1984, Ch. 38, $82 ............. 14

Ill. Rev. Stat., 1984, Ch. 38, §12-3(a) .......... 13

Ill. Rev. Stat., 1984, Ch. 38, §12-4(a) .......... 13

Ill. Rev. Stat., 1984, Ch. 38, §12-4(bX12Xc) .... 13

Ill. Rev. Stat., 1984, Ch. 38, §12-5(a) .......... 14

OTHER SOURCES:

Getting Away With Murder: Federal OSHA Pre-

emption Of State Criminal Prosecutions For

Industrial Accidents, 101 Harv. L. Rev. 535,

ok ETRE OTe OTT CET ene ne 17, 23

Report of House Committee on Government Opera-

tions, Getting Away With Murder In The Work-

place: OSHA’s Nonuse Of Criminal Penalties

For Safety Violations, H.R. Rep. No. 1051,

100th Cong., 2nd Sess. 9 (1988) ........ 17, 21, 23

Warren, Rebecca, The OSH Act and State Crimi-

nal Law: A Prosecutor’s Brief, Criminal Law

Bulletin, May-June, 1989, Vol. 25 No. 3, Warren

Gorham & Lamont, Inc., Boston, Mass. .... 23

No. 88-1783

In THE

Supreme Court of the Anited States

OctosEeR TERM, 1988

FRANK ASTA, et al.

Petitioners,

v.

STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

RESPONDENT'S BRIEF IN OPPOSITION

SUMMARY OF ARGUMENT

I. Since this case was dismissed prior to there being

any contested factual hearings, there are a number of fac-

tual issues which are in contest. The best example of such

an issue is Petitioners’ contention that they were in com-

pliance with OSHA standards and regulations. Respon-

dent denies this contention. It is submitted, therefore, that

the facts in this case have not been sufficiently developed

at this time to merit review by this Court.

saiiie

II]. The cases which Petitioners contend raise irreconcil-

able conflicts between the States on the issue of federal

pre-emption of state criminal prosecutions are, in fact,

neither necessarily irreconcilable, nor in absolute conflict.

In fact, all the cases relied upon by Petitioners are fac-

tually distinguishable, almost all were decided in reliance

upon a subsequently reversed appellate opinion in the case

below, and several are actually consistent in principal with

the holding of the Illinois supreme court in the case below.

Moreover, since no state court of last resort, except the

Illinois supreme court, has decided whether OSHA pre-

empts such criminal prosecutions, it is submitted that

further development by the States in this area would be

appropriate before this issue is reviewed. Respondent sug-

gests that, in fact, it is probable that no conflict will be

found to exist once this issue is decided by the supreme

courts of the various states where it is pending.

III. It is not clear from the factual record in this case

that all of the substances involved in the charges implicate

OSHA standards, nor does it affirmatively appear that

OSHA standards specifically apply to absorption through

the skin of all of the substances involved in this prose-

cution. The facts in this case should, therefore, be more

fully developed before review by this Court is entertained.

IV. The instant prosecutions involve the exercise by

the State of Illinois of its historic police power to punish,

as a matter of retributive justice, crimes which occur with-

in its borders, no matter in what setting those crimes may

take place. Congress, in enacting the Occupational Safety

and Health Act, intended primarily to create safe and

healthful working conditions for the workers of America,

and to further that objective, established a system where-

by certain national minimum standards would be estab-

lished, below which employers could not fall. Congress did

an. ae

not expressly pre-empt the States from prosecuting per-

sons who commit crimes in the workplace, nor did it in-

tend to immunize employers as a class from criminal pros-

ecution for the criminally motivated death or injury of

their employees. Evidence of Congressional intent not to

preempt may be found in the language and structure of

the Occupational Safety and Health Act itself, most spe-

cifically in its statement of purpose, its broad savings

clause, its reservation of power to the States, and in its

enactment of misdemeanor criminal penalties to punish

only standard violations, rather than substantive offenses

such as Murder, Aggravated Battery, and Conspiracy.

State prosecutions, such as that in the case below, do not

conflict with the purpose of OSHA, nor do they in any

way obstruct its application. Therefore, such prosecutions

cannot have been intended by Congress to be pre-empted.

ARGUMENT

In making this response to the arguments of Petitioners

for a grant of Certiorari, Respondents in no way dispute

or diminish the importance of the question of whether or

not the States, in the exercise of their historic police

powers, are to be permitted to continue the prosecution

of criminal offenders in the work setting. Certainly, the

question of whether the Occupational Safety and Health

Act, in conjunction with Article VI, Clause 2 of the Con-

stitution of the United States, should be read to preempt,

and thereby to immunize, an entire class of persons from

ition

such prosecutions is an important issue.' Certiorari ought

not to be denied, therefore, because the question is unim-

portant, but for a number of other reasons, which inciude:

(1) the presently undeveloped and unclear factual posture

of this lawsuit; (2) the lack of opportunity for courts of

last resort in the several states to develop and decide

precedent in this area; (3) the clear inapplicability of the

Occupational Safety and Health Act to a large proportion

of the underlying case; and (4) the correctness of the deci-

sion of the Supreme Court of Illinois and the relative clar-

ity of the issues and statutes involved.

THIS CASE, HAVING BEEN DISMISSED PRIOR TO

ANY FACTUA’t, HEARING ON ITS MERITS, IS INSUF-

FICIENTLY DEVELOPED FOR CONSIDERATION BY

THIS COURT AT THIS TIME.

No contested factual hearings were ever had in this

case. The Indictments and Informations which charged

Petitioners with Aggravated Battery, Reckless Conduct,

and Conspiracy against some 42 victims were dismissed,

as pre-empted by OSHA and the Supremacy Clause of

the Constitution of the United States, prior to any trial

on the merits.

' Although Petitioners now argue the importance of the preemp-

tion question and bluntly state that the issue is “a recurring one

which ultimately will have to be resolved by this Court,” (e.g.,

Petition p. 21) such was not always the case. In their Response

to the State’s Petition For Leave To Appeal to the Supreme Court

of Illinois, Petitioners in this Court took the implicit position that

the issues in this case presented no questions of “general impor-

tance.’’ (Response to Petition For Leave To Appeal, pp. 2-3, and

n. 1) Nevertheless, Respondents agree that the questions were

then, and are now, imporiant.

=

Therefore, although this case may or may not be “ripe”’

in a strictly technical sense, Respondent submits that it

is insufficiently developed as a matter of discretionary

review, for consideration by this Court at this time.

A prime example of why this is so may be found in the

conflict between Petitioners’ assertions that they are be-

ing prosecuted despite being in compliance with OSHA

standards, (See Petition, pp. 18 and 21) and Respondent’s

contention that, whether or not Petitioners had ever been

cited by OSHA for standard violations, they were, in fact,

in violation of those standards.?

Respondent respectfully suggests that it is impossible,

at this stage of these proceedings, to determine the valid-

ity of invalidity of Petitioner’s factual arguments, and that

since their assertions are contested by Respondent, it

would be inappropriate at this time to assume their truth.

Accordingly, Respondent submits that this matter is not

ripe, in the practical sense, for consideration by this Court

at this time. Respondent therefore respectfully urges for

2 Respondent reiterates that this prosecution is based upon the

historic right of the States to exercise their police power to punish

crimes committed within their respective jurisdictions as a matter

of retributive justice. This is not, nor has it ever been, an attempt

to set or enforce OSHA standards. Accordingly, since this is not

an enforcement action, no standard violations were alleged. Viola-

tive conduct, as will be seen, although not material, may be highly

relevant to the material issue of Petitioners’ mental states. (See

footnote 27, infra.) Evidence of compliance or nen-compliance with

OSHA Standards may be introduced on this issue by either side,

and a factual determination, followed by a legal conclusion, made

on this and the other evidence. Respondent respectfully submits,

however, that Petitioners ought to not expect this Honorable

Court to make those factual determinations. Rather, the case

should first be litigated to determine the validity or invalidity of

Petitioners’ contentions, and whether or not they are germane.

ieaililios

any or all of the foregoing reasons, that Certiorari be

denied.

II.

THE FEW CASES WHICH HAVE ARISEN IN THIS

AREA, MOST OF WHICH HAVE NOT YET REACHED

THE COURTS OF LAST RESORT IN THEIR RESPEC-

TIVE JURISDICTIONS, ARE BOTH FACTUALLY DISTIN-

GUISHABLE, AND AT THE SAME TIME, NOT ALL IR-

RECONCILABLY INCONSISTENT IN PRINCIPAL FROM

THE DECISION OF THE COURT BELOW. TIME IS

NEEDED FOR FURTHER DEVELOPMENT OF THE LAW

IN THIS AREA BY THE S&VERAL STATES.

Petitioners take the position that certiorari ought to be

granted because the holding of the Supreme Court of IIli-

nois in this case is inconsistent with opinions in other

jurisdictions. (Petition p. 19) Petitioners then cite some

of these cases to support their argument.

Respondent maintains, however, that the cases relied

upon by Petitioners are either distinguishable, not all that

different from the decision of the Illinois high court in

principal, have not yet reached the court of last resort

in the state where the issué is being litigated, or were

overly dependent upon the Illinois appellate court’s er-

roneous, and since reversed, decision in the case below.

Respondent will deal with each of these cases seriatim.

Petitioners rely upon Sabine Consolidated, Inc. v.

Texas, 756 S.W. 2d 865 (Texas App., 1988), a case in

which the State of Texas, based its prosecution for negli-

gent homicide upon the “general duty clause”’ of a state

occupational safety and health statute. It is unclear from

the opinion whether or not the State of Texas ever ob-

tained approval for its health and safety statute, but

presuming that it did not have an approved plan at the

time the prosecutions were brought, the safety statute

upon which the prosecution was based was itself pre-

empted. Subsequent dictum of the Texas Court notwith-

standing, Respondent submits that had the Illinois prose-

cutions at bar been based upon a similar Illinois statute,

the result in the Illinois supreme court in this case might

have been the same as it was in Sabie.‘ In this particular

respect, Sabine is not only factually distinguishable from,

but is not necessarily all that different in principal from

the opinion below. Finally, the Court in Sabine bottomed

its opinion upon the Illinois appellate court’s subsequent-

ly reversed opinion in the instant case, so its preceden-

tal value is questionable.

Petitioners further cite Colorado v. Kelran Construc-

tion, Inc., 18 OSHC 1898 (Dist. Ct. Colo. Oct. 6, 1988),

a Colorado trial court opinion which not only placed heavy

reliance upon the appellate court opinion below, but which

8’ According to 29 C.F.R. §1902.4(cXxi), at the time of the Texas

prosecutions twenty-one states, one territory and one common-

wealth had obtained federal approval! for plans they had enacted.

These jurisdictions were: Alaska, Arizona, California, Hawaii, In-

diana, lowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,

New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,

Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington

and Wyoming. Texas apparently did mot have an approved plan.

4 Petitioners, in fact, relied heavily upon the case of Stanislawski

v. Industrial Commission, 99 Ill. 2d 36, 457, N.E. 2d 399, 75 IIl.

Dec. 405 (1983), in both the Illinois appellate court and the Illinois

supreme court. Stanislawski, held that the old Illinois Health and

Safety Act, under which Stanislawski sought to recover additional

worker's compensation benefits, had been preempted by OSHA.

Although the appellate court's opinion mentioned Stanislawski, the

supreme court’s opinion does not, due primarily to its successful

distinguishment and its facial inapplicability. (the instant prosecu-

tion is not based upon the pre-empted standards contained in an

old act.) Texas apparently did base its prosecution upon standards

contained in a pre-empted act.

_

seemed to seek guidance from the then as yet undecided

Illinois supreme court.5 Respondent is somewhat surprised

that Petitioners would rely on this case, since it appears

that it would have been decided differently if the Colorado

judge had waited for the opinion he was seeking. The case

is also distinguishable because the State stipulated in

Kelran that the conduct of the defendant, as well as the

cause of death of the victims, were controlled by OSHA.

This is not true in the instant case.

Thornock v. State, 745 P.2d 324 (Mont., 1987), was an

action against the State of Montana by an injured worker

for recovery in addition to worker’s compensation benefits.

Thornock premised his claim, as did Stanislawski in IIli-

nois,® upon an old safety law, since preempted by OSHA.

Respondent suggests that had this same suit been brought

in Illinois, the result would have been the same under

Stanislawski v. Industrial Commission.?

Finally, Petitioners cite People v. Hegedus, 169 Mich.

App. 62, 425 N.W. 2d 729 (1988), leave to appeal granted

in 429 N.W. 2d 593 (Mich. 1988) a non-unanimous deci-

sion by a Michigan appellate court which for Respondent,

represents a prophecy fulfilled.

* The Colorado judge noted, on page 8 of his slip opinion: “The

Court has recently inquired of the Illinois (sjupreme (c)ourt because

the court is aware that the decision of the Illinois Court of Ap-

peals (sic) has been appealed to it. The docket number in the Illi

nois Supreme Court is 65588 and oral argument was heard on

March 23, 1988. A decision may be rendered as soon as October

20, 1988 (in fact, decision was rendered February 2, 1989) but may

also be somewhat later than that. In any event, there is no deci-

sion by that Supreme Court or the highest court in any of the

states mentioned.”

8 See footnote 4, id.

7 See footnote 4, id., 99 Ill. 2d 36, 457 N.E. 2d 399, 75 Ill. Dec.

405 (1983).

—' =

In the courts below Petitioners explicitly argued that

the state would be permitted to conduct prosecutions, such

as that at bar, if they obtained approval for a plan from

the Secretary of Labor. They implicitly make the same

argument here. (See, Petition, pp. 6, 14) Respondents

pointed out that the implications of Petitioner’s arguments

were frightening, for according to the position taken by

Petitioners, a prerequisite to criminal justice for persons

who work for a living will be the adoption and approval

by their State, of a state safety plan, which the State

must take to Washington for presentment to the Secretary

of Labor (a non-elected official) for approval. If the plan

is approved, the state must then create a huge bureaucra-

cy with its attendant added expense to the taxpayers (who

are already paying for OSHA), and it must share its au-

thority with the federal government for a period of three

years, after which, it may assume full responsibility for

health and safety, and presumably, also for the enforce-

ment of its own criminal laws.®

Respondent also made the following argument:

Woe be unto the state which fails to dot every “i”

and to cross every “‘t’’ under Defendants’ theory of

preemption, for states which do not include every

conceivable crime in the ‘‘plan’’ will not be permitted

to prosecute them. Under the approach advocated by

the defendants to the Constitution, state and local

legislators would have to appear regularly before the

Secretary of Labor, hat in hand, every time local

8 Space limitations prohibit exploration of all of the ramifications

of §667 of OSHA if held to apply to state criminal laws of general

application, but one such issue is whether Congress has the Consti-

tutional Authority to delegate the power of discretionary pre-

emption te the unelected head of an administrative agency, to pre-

empt local criminal laws or their enforcement.

—10—

needs dictated the necessity for new or modified

criminal legislation which might have some impact

upon the workplace. The unelected secretary would

then pass upon which criminal laws local prosecutors

could enforce, and which they could not. The absur-

dity of this situation is ex only by its corrosive

effect upon our federal system and the constitutional

rights of the several states to exist in our federal

union as partners, junior though they may be, with

the national authority. . . . The offensive cast of the

defendants’ preemption theory, seen in the glaring

light of its ultimate consequences, carries with it its

own conclusion. Defendants preemption theory must

be rejected, and the People must be permitted to pro-

ceed against them in criminal court. (Reply Br., Su-

preme Court of Illinois, pp. 21-22)

The reason Respondent’s have taken the admittedly un-

usual step of quoting from their own brief in the court

below is to illustrate, in light of the Michigan appellate

court’s decision in People v. Hegedus,® that the fears ex-

pressed by Respondents in the court below were in im-

minent danger of becoming a reality, prior to the Illinois

supreme court’s decision.

Michigan is a state with an approved OSHA plan.?°

Nevertheless, the Michigan appellate court forbade the

prosecution of the defendant for involuntary manslaughter

on grounds of federal pre-emption, because:

Although MIOSHA is a federally approved state plan

and contains criminal penalties in excess of OSHA.

the prosecution here is not under MIOSHA. Instead,

the prosecution is attempting to bring general

criminal charges against defendant. This attempt to

169 Mich. App. 62, 425 N.W. 2d 729 (Mich. App. 1988).

10 Mich. Stat. Ann. §17.50(i) et seq.

|

circumvent the penalties in MIOSHA is also an at-

tempt to assert jurisdiction over a federally cov-

ered occupational safety and health issue other than

through an approved state plan."

Fortunately for criminal justice, the Michigan Supreme

Court has accepted this case for review,'? and since the

appellate court relied heavily upon the since reversed deci-

sion in the case below, the final resolution of this case

may yet be different.

In sum, most of the decisions cited by Petitioners are

distinguishable, and consequently not of the type to create

a clear difference of opinion and consequent irreconcilable

split of authority between the states. Moreover, no state

high court, save that of Illinois in the case below, has yet

passed on the issue of prosecutions of employers, such as

that at bar, which are based on criminal laws of general

application.

Respondent submits that given time, these issues will

be resolved by the various states in a consistent, and con-

stitutional manner.

Accordingly, for all or any of the foregoing reasons, Re-

spondent respectfully requests that certiorari be denied.

11 People v. Hegedus, 169 Mich. App. 62, 425 N.W. 2d 729 at 731

(Mich. App. 1988). However, see the dissent of Danhoff, C.J., 425

N.W. 2d at 732.

2 429 N.W. 2d 593.

a

Ill.

SINCE FULLY ONE-HALF OF THE CHARGES MAY

NOT EVEN BE SUBJECT TO THE PREEMPTION ARGU-

MENT, A GRANT OF CERTIORARI AT THIS TIME

WOULD BE PREMATURE.

It is not apparent from the record on appeal in the case

below whether all of the substances alleged to have been

inhaled by the multiple victims in this case are substances

for which OSHA standards are in effect, and it is open

to question how many, if any, of those substances are spe-

cifically covered by standards regulating skin absorption,

which means that fully one-half, or even more than one-

half of the charges in the instant prosecution may not be

specifically mentioned by OSHA “standards” at all.

This lack of clarity is due, in part, to the early stage

at which these charges were dismissed.

It is respectfully submitted that further factual pro-

ceedings are necessary to clarify this, and the other issues

before this Court before this case becomes one that is

suitable for review on certiorari.

Accordingly, Respondent respectfully requests that for

all or any of the foregoing reasons, certiorari be denied.

_

IV.

THE ISSUE OF WHETHER THE STATES MAY PROS-

ECUTE CRIMES OCCURRING IN THE WORKPLACE,

IN THE EXERCISE OF THEIR HISTORIC POLICE

POWERS, OR WHETHER THE OCCUPATIONAL SAFE-

TY AND HEALTH ACT, AN ACT PRIMARILY CON-

CERNED WITH THE PROMOTION OF WORKER SAFE-

TY, PREEMPTS SUCH PROSECUTIONS, IS NOT A

CLOSE QUESTION, AND WAS CORRECTLY RESOLVED

AGAINST SUCH PREEMPTION BY THE SUPREME

COURT OF ILLINOIS.

The entire argument of Petitioners is based upon several

incorrect premises. Once these premises are examined

closely and seen to be incorrect, the entire preemption

argument in this case may be seen for what it really is:

a hyper-technical and confused misapplication or misread-

ing of the Occupational Safety and Health Act (““OSHA”,

or the “OSH Act’’), and the mistaken emphasis of some

of its provisions at the expense of others.

Viewed in context, as it was by the Illinois supreme

court, the OSH Act does not support Petitioners’ preemp-

tion theory, and in fact, does not present a question suf-

ficiently close to merit a grant of certiorari by this Court.

A. Viewed In Context, The OSH Act Neither Expressly Nor

Impliedly Preempts Prosecution By The States Of

Crimes Occurring In The Workplace.

The underlying prosecution involves Indictments and In-

formations against the Chicago Magnet Wire Corporation,

and five of its top executives, including Petitioner Frank

Asta, for multiple counts of Aggravated Battery,!* Reck-

13° TI]. Rev. Stat., 1984, Ch. 38, §12-4(a), and (bX12Xc) in conjunc-

tion with §12-3(a).

auliities

less Conduct,'* and Conspiracy,'® all of which are alleged

to be in the violation of the generally applicable laws of

the State of Illinois. Illinois is a State which has elected

not to create its own state occupational health and safety

administration, having withdrawn a previously submitted

safety and health plan from consideration by the Secretary

of Labor. The statutes under which Petitioners are charged

do not, by their terms, purport to regulate health and

safety issues, or the work environment, but rather, are

criminal statutes of general application, applicable to alli

persons, and to all classes of persons, in the State of

Illinois.

The OSH Act contains an extensive and explicit state-

ment of the Congressional purpose behind its creation.'®

Although Petitioners seek to sprinkle their argument with

references to legislative “history,” and the statements of

certain Congressmen, resort to such devices are neither

necessary nor desirable where, as here, the congressional

intent is clear from the face of the legislation itself. As

this Court noted recently in another case, Congressional

intent is “best determined by the statutory language (Con-

gress) chooses. . . . (and) (C)ongressional silence, no matter

how ‘clanging’, cannot override the words of the statute.”

Sedima S.P.R.L. v. Imrex Company, Inc., 473 U.S. 479,

495 n. 13, 105 S.Ct. 3275, 3285 n.13, 87 L. Ed. 2d 346,

358 n.13 (1985).

It is by now well established that the principal congres-

sional purpose behind the OSH Act was the provision to

the workers of America of “safe and healthful working

4 Til. Rev. Stat., 1984, Ch. 38, §12-5(a).

'S Til. Rev. Stat., 1984, Ch. 38, §8-2.

6 29 U.S.C. §651(b).

-_ =

conditions” and the preservation of our precious “human

resources.” See, 29 U.S.C. §651(b) and, Taylor Diving and

Salvage Co., Inc. v. United States Department of Labor,

599 F.2d 622 (5th Cir. 1979); Anning-Johnson Co. v.

O.S.H.R.C., 516 F.2d 1081 (7th Cir. 1975); RMI Co. v.

Secretary of Labor, 594 F.2d 566 (6th Cir. 1979); Amer-

ican Smelting and Refining Co. v. O.S.H.R.C., 501 F.2d

504 (8th Cir. 1974).

The structure of the OSH Act clearly indicates that

Congress intended to accomplish these objectives by in-

viting the active participation of the States, and by setting

certain minimum standards below which no employer

could fall. To assure the accomplishment of these objec-

tives, Congress required that all state plans designed to

regulate health and safety in the workplace be approved

by the Secretary of Labor. See, 29 U.S.C. §§651(bX3), and

(11), 667(b), 667(cX2); and compare American Federation

of Labor and Congress of Industrial Organizations, In-

dustrial Union Dept. v. Marshall, 570 F.2d 1030 (D.C.

Cir. 1978).

Petitioners have taken this simple, straightforward ap-

proach to worker safety and, with the addition of many

sources not found in the statute, have sought to create

a subtle, but significant change. Implicit in Petitioners’

argument is the assumption that the creation of the OSH

Act was intended to create a mandatory uniform national

standard, rather than a mandatory minimum national

standard for workplace safety. (See, Petition at pp. 10,

16-17) This is the first, the most subtle, and one of the

more dangerous misassumptions indulged in by the Peti-

tioners, and its exposure and refutation is fatal to their

argument.

—16—

It is submitted that the Supreme Court of Illinois cor-

rectly held 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.” (Citing United Airlines,

Inc. v. Occupational Safety & Health Appeals Board, 32

Cal. 3d 762, 654 P.2d 157, 187 Cal. Rptr. 387 (1982)) (Opin-

ion, Petition at p. 10a).

A contrary construction, particularly the more expan-

sive one implicitly advocated by Petitioners, squares with

neither the structure nor the provisions of the OSH Act.

For example, the very provision which mandates review

of submitted plans by the Secretary of Labor anticipates

differences between them.!7 So does the provision en-

couraging the several States to assume full responsibil-

ity for their own safety and health laws within the con-

text of their own individualized needs,!® and the broad

“savings clause’”’ leaving intact an employers’ liabilities

and his responsibilities and duties to employees under any

law.4® The Illinois supreme court’s interpretation of

OSHA’s basic structure and purpose is also consistent

with the opinions of other courts which have approached

this issue. Compare, American Federation of Labor and

Congress of Industrial Organizations, Industrial Union

Dept. v. Marshall, 570 F.2d 1030, 1042-1043 (D.C. Cir.

1978) (Concurring Opinion).

This distinction between mandatory minimum standards

and mandatory uniform standards is an important one,

because only under the latter can Petitioners hope to

17 29 U.S.C. §667(cX2).

18 29 U.S.C. §651(1)).

19 29 U.S.C. §653(bX4).

=,

justify the argument that “(r)ega~dless of whether such

ad hoc state standards are more ‘strict’ or more ‘lenient,’

application 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.” (Petition at p. 16) (emphasis

original)?° Since the criterion established by Congress is

“mandatory minimum,” not “mandatory uniform’? many

20 Petitioners do not explain either here, or at any other place

in their Petition, exactly how the charges in the instant case ac-

tually conflict with any existing OSHA standard. Petitioners then

compound their error in interpreting OSHA by indulging in gross

speculation about “local standards” being ‘established on a sub-

jective and post-hoc basis”, which will result in the establishment

of an entire ‘“‘secondary” level of standards, where “local author-

ities will simply decide, without guidance, whether to deem a par-

ticular workplace environment ‘safe’—regardless of what standards

the federal government, under OSHA, has established to regulate

that environment.” (Petition at p. 17) “Under the decision below’’,

Petitioners prognosticate, “‘ prosecutors will have the discre-

tion to use imprecise judgment as to workplace safety to indict

an employer or even, in extreme cases, for purposes of political

harassment.” (Petition p. 18) This lop-sided and irresponsible view

of federalism is not only presumptuous and completely without sup-

port in the record of the instant case, but it also ignores the follow-

ing facts: (1) If Congress had believed Petitioners groundless fears

to be valid, it could have expressly preempted such prosecutions

and would not additionally have invited the States to create and

enforce their own health and safety plans; (2) An exclusively fed-

eral approach is not the only answer, nor are federal agencies in-

herently any more energetic, expert or honest than their State

counterparts. Some of the fears expressed by Petitioners have al-

legedly already become realities in the area of criminal prosecution

under federal OSHA (See, Report of House Committee on Govern-

ment Operations, “Getting Away With Murder In The Workplace:

OSHA’s Nonuse of Criminal Penalties For Safety Violations,” H.R.

Rep. No. 1051, 100th Cong. 2nd Sess. 9 [1988]); (3) the element

of scienter in a criminal case would be, in the practical sense, im-

possible to prove if OSHA standards were complied with; and (4)

OSHA has no comparable criminal penalties.

ain

of the policy arguments advanced by Petitioners are in-

valid.

Even more importantly, the prosecution of criminal of-

fenses under state criminal laws of general application can-

not be »reempted by OSHA because such prosecutions

do not equate with the enforcement of health and safety

“standards”, as the term “standard” is defined in the

OSH Act.?!

This Court has held that the analysis to discover whether

a state law is te be preempted by federal legislation con-

sists of two major prongs. The first of the two prongs

consists of an analysis of the federal statute itself to deter-

mine whether Congress has used language which would

constitute an “express” preemption of the state statute

in question. See, Pucific Gas & Electric Company v. State

Energy Resources Conservation & Development Commis-

sion, 461 U.S. 190, 203, 103 S.Ct. 1713, 1722, 75 L.Ed.

2d 752, 765 (1983). If no express preemption is found, a

state law may still be held to have been impliedly pre-

empted if preemption was intended by Congress. Fidel-

ity Federal Savings and Loan Assn. v. De La Cuesta,

458 U.S. 141, 152-153, 102 S.Ct. 3014, 3022, 73 L.Ed. 2d

664, 674-675 (1982). Preemption may be implied in several

ways. First, preemption 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 regulation.”’ Hillsborough

County v. Automated Medical Laboratories, Inc., 471 U.S.

707, 713, 105 S.Ct. 2371, 2375, 85 L. Ed. 2d 714, 721,

(1985); Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230, 67 S. Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947). Sec-

21 29 U.S.C. §652(8).

=—

ond, preemption may be inferred where “ ‘(t)he object

sought to be obtained by the federal law and the character

of obligations imposed by it may reveal the same pur-

pose.’” Fidelity Federal Savings and Loan v. De La

Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed

2d 664, 675 (1982), quoting Rice v. Santa Fe Elevator Cor-

poration, 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed

1447, 1459 (1947). Third, preemption may be inferred

where the regulated field is one in which “the federal in-

terest is so dominant that the federal system will be as-

sumed to preclude enforcement of state laws on the same

subject.” Rice v. Santa Fe Elevator Corporation, 331 U.S.

218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947);

Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed.

581 (1941).

“Where, (however) the field which Congress is said to

have preempted has been traditionally occupied by the

States . . . ‘we start with the assumption that the historic

powers of the States were not to be superceded by the

Federal Act unless (pre-emption) was the clear and mani-

fest purpose of Congress.’ ”’ Jones v. Rath Packing Com-

pany, 430 U.S. 519, 525, 97 S.Ct. 1805, 1309, 51 L. Ed.

2d 604, 614 (1977).

The power to prosecute crimes is one which has rested

traditionally with the States. See, Knapp v. Schweitzer,

357 U.S. 371, 375, 78 S.Ct. 1302, 1305, 2 L.Ed 2d 1393

(1958); Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct.

2319, 2322, 53 L. Ed. 2d 281, 287 (1977). In the State of

Illinois, the enactment of criminal statutes, the enforce-

ment of the criminal law, and the sentencing of convicted

criminals are an exercise by the State of its traditional

police power. See, People v. Alejos, 97 Ill. 2d 502, 455

N.E. 2d 48, 74 Ill. Dec. 18 (1983); People v. Bradley, 79

~~ Se

Ill. 2d 410, 417, 403 N.E. 2d 1029 (1979); People v. Cole-

man, 111 Ill. 2d 87, 488 N.E. 2d 1009, 1013-1014 (1986).

Where the state’s police power is involved, courts are

reluctant to find preemption unless the preemptive intent

is “clearly indicated,” Maurer v. Hamilton, 309 U.S. 598,

614, 60 S.Ct. 726, 734, 84 L.Ed. 969 (1940); ‘definitely

expressed,” H.P. Welsh Co. v. New Hampshire, 306 USS.

79, 85, 59 S.Ct. 438, 441, 83 L.Ed. 500 (1959); “clear and

manifest,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); and “un-

mistakably . . . ordained [by Congress.]” Florida Lime

& Avocado Growers, Inc. v. Paul, 373 U.S. 182, 142, 83

S.Ct. 1210, 1217, 10 L. Ed. 2d 248, 257 (1963). Otherwise,

there is a presumption that “Congress did not intend to

displace state law.” Maryland v. Louisiana, 451 U.S. 725,

746, 101 S.Ct. 2114, 2129, 68 L.Ed. 2d 576, 595 (1981);

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67

S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).

(1) Congress Did Not Expressly Preempt State Criminal

Prosecution Of Offenses Occurring In The Work-

place.

The OSH Act contains no provision which expressly pre-

cludes all state-action in the workplace, nor one which pre-

cludes criminal prosecutions. To the contrary, it contains

several provisions which militate against the idea of pre-

emption. For example, Section 653(b)(4)??_ specifically

leaves intact all laws relating to the rights, duties and

liabilities of both employers and employees under any law

with respect to injuries, diseases, or the death of em-

ployees arising out of, or in the course of employment.

Section 667(a)23 even permits the States to take jurisdic-

22 29 U.S.C. §653(b\4).

23° 29 U.S.C. §667(a).

_ =

tion directly over health and safety issues themselves

where no OSHA Standards are in effect. Moreover, the

complete lack of serious criminal penalties also evidences

a lack of desire on the part of Congress to become in-

volved in the area of criminal jurisprudence, and indicates

that the primary thrust of the standard enforcement ef-

fort is to be through civil, rather than through criminal

sanctions.*4 The legislative history of the OSH Act is not

inconsistent with this philosophy.

The setting or enforcing of occupational safety and health

“standards” pursuant to §667(b)?5 is not the same thing

as punishing an injury to, or the death of, a worker where

that injury or death is criminally motivated. Neither the

criminal statutes in question, nor the charging documents

in this case even mention occupational safety and health

“standards.”’ Accordingly, there can be no “express” pre-

emption.

24 The only section of the OSH Act which contains a provision

even remotely resembling the offenses with which Petitioners are

charged is 29 U.S.C. e), which provides misdemeanor sanc-

tions for willful standard violations resulting in the death of an

employee. No deaths are alleged in the instant case, and there

is no song in the statute to — substantive offenses, only

violations of OSHA standards. Even so, from OSHA’s in

1970, to February, 1988, only 42 cases were referred by OSHA

for criminal prosecution. Only 14 of those cases were prosecuted,

and only 10 of those resulted in criminal convictions. In the en-

tire 18-year history of OSHA, up to February, 1988, no one had

ever spent one day in jail for any criminal offense, despite the

fact that during this period more than 100,000 American workers

lost their lives because of unsafe working conditions. Report of

House Committee 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 Congress, 2nd

Session 9 (1988) (pp. 3-4).

25 29 U.S.C. §667(b).

29

For the foregoing reasons, therefore, Respondents urge

that Certiorari be denied.

(2) Since The Primary Purpose Of Congress, When

Enacting OSHA, Was The Promotion Of Safe And

Healthful Working Conditions For The Workers Of

America, Congress Could Not Have Intended To Ac-

complish Its Objective By Immunizing Those Few

Unscrupulous Employers Who Knowingly Commit

Crimes Against Those Workers, And The Doctrine

Of Implied Preemption Is Therefore Inapplicable.

The theory which is the necessary underpinning of Peti-

tioners’ implied preemption arguments, is based upon a

fundamentally faulty premise, to-wit: That the criminal

prosecution of certain unscrupulous employers, who know-

ingly, intentionally, or wilfully injure or kill their em-

ployees, equates with the enforcement of health and safe-

ty standards. Petitioners then add unnecessary complex-

ity to the problem by speculating about the supposedly

inconsistent results such prosecutions will have on the

regulatory effort nationally, and by disingenuously imply-

ing that they (Petitioners) were in compliance with OSHA

Standards and are thereby being unjustly prosecuted.?®

26 Petitioners’ assertion that they are being unjustly prosecuted

is contained in their statement that. . . (Dt seems plain that Con-

gress’ intent to encourage employer cooperation will be thwarted

if employers (such as petitioners) who comply with OSH Act Stan-

dards become subject to local prosecution. (emphasis supplied)

(Petition at p. 18 and also see p. 21) This none too subtle argu-

ment is improper because Petitioners were dismissed prior to any

factual hearing or trial in this case, and thus the question of

whether the allegedly egregious conduct of Petitioners violated any

OSHA standards was never heard. Because of the implication that

the State of Illinois is engaging in this type of conduct, Respon-

dent has attached, as Appendix “A” to this brief, the Statement

(Footnote continued on following page)

=~ oe

(Petition at p. 18) Petitioners then seek to further con-

fuse the issue by misstating Respondents’ position regard-

ing the relevancy of testimony about OSHA standards.27

Of course, there was no allegation in the pleadings

below that Petitioners had violated OSHA standards, be-

cause this case was not brought to enforce OSHA stan-

dards.?8 Instead, as the Illinois supreme court held, this

26 continued

Of Facts, based upon the trial court record, which Respondent pre-

sented to the Supreme Court of Illinois. Because this Statement

is based, in part, upon testimony before the Cook County Grand

Jury, it is not submitted as having been established beyond a rea-

sonable doubt. Rather, it is appended simply to rebut the asser-

tions of Petitioners that they were in compliance with OSHA stan-

dards, and to illustrate, in graphic terms, the type of prosecution

which is represented by the underlying case and some of the facts

Respondent expects to prove if this case is allowed to be tried

on its merits. The Illinois Court declined to grant Petitioners’ Mo-

tion to Strike this testimony, thus leaving it as part of the Record

on Appeal. (Opinion, Petition, p. 17a) Expositions of this and of

other similar cases of workplace crimes may also be found in the

following sources: Getting Away With Murder: Federal OSHA Pre-

emption Of State Criminal Prosecutions For Industrial Accidents,

101 Harv. L. Rev. 535, 550 (1987); Warren, Rebecca, The OSH

Act and State Criminal Law: A Prosecutor’s Brief, Criminal Law

Bulletin, May-June, 1989, Vol. 25 No. 3, Warren Gorham & La-

mont, Inc., Boston, Mass. (pp. 234-256); and Report of House Com-

mittee 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., 2nd Sess. 9 (1988).

27 Petitioners erroneously characterize Respondents’ position by

stating that the Respondent successfully contended that “OSHA

standards are simply irrelevant in this case.” (Petition p. 17) This

is not, nor has it_ever been Respondents’ position in this case.

Rather, Respondents have taken the position that OSHA viola-

tions are immaterial, which is to say, they need not be alleged

as a separate element of the state crime charged. Actually, as a

practical matter, compliance or non-compliance may be highly rele-

vant in determining the material element of mens rea.

” .

—24—

case was brought “to punish as a matter of retributive

justice.” (Opinion, Petition at p. 8a) To be sure, every

state statute which touches at all upon an area where fed-

eral legislation is present has some incidental impact upon

that area, but where that impact is neither direct, nor

in conflict with the federal legislation, the incidental im-

pact does not rise to the level of preemption. Silkwood

v. Kerr-McGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615,

625, 78 L.Ed. 2d 443, 457 (1984); and-compare, Smith v.

Western Electric Co., 643 S.W. 2d 10 (Mo. App., 1983).

In a number of ways, Congress has not only failed to

indicate an intent to occupy the field of state criminal law,

but has clearly indicated a contrary intent.

As already noted, the primary purpose of OSHA is the

encouragement of improved working conditions, the pro-

motion of the health and safety of workers, and the pres-

ervation of our precious human resources. (See, pps. 14-15,

supra.)

Congress elected to accomplish these ends by enacting

regulations and by imposing sanctions for the violations

of those regulations. Moreover, even in the realm of regu-

lation of the workplace, Congress did not intend to oc-

cupy every area. Thus, in the absence of a federal stan-

dard under 29 U.S.C. §655, even state regulatory laws

are not preempted, since Congress did not intend to oc-

cupy the entire field of regulation. Puffer’s Hardware, Inc

v. Donovan, 742 F. 2d 12, 16 (1st Cir. 1984); (and see also:

29 U.S.C. §667(a), which reserves to the state the right

to assert its jurisdiction over health and safety issues for

which no OSHA standards are in effect.)

Therefore, even in the area of direct regulation, Con-

gress has indicated that it did not anticipate the complete

preoccupation of the field by OSHA.

iin.

Petitioners’ argument that Congress intended to occupy

the “whole field” therefore is not even valid as it applies

directly to health and safety issues themselves, and as

this Court stated in Hillsborough County v. Automated

Medical Laboratories, Inc.:

Appellee’s second argument for pre-emption of the

whole field . . . is that an intent to pre-empt can be

inferred from the dominant federal interest in this

field. We are unpersuaded by this argument. Undoubt-

edly, every subject that merits congressional legisla-

tion is, by definition, a subject of national concern.

That cannot mean, however, that every federal stat-

ute ousts all related state law. Neither does the

Supremacy Clause require us to rank congressional

enactments in order of “importance”’ and hold that,

for those at the top of the scale, federal regulation

must be exclusive. 471 U.S. 707, 719, 105 S.Ct. 2371,

2378, 85 L.Ed. 2d 714, 725 (1985).

This is true with especial force in the instant area,

where Congress has not only invited State participation

and reserved regulatory authority to the States in the

health and safety area itself,2® but has explicitly stated

its intention that all non-conflicting laws are to remain

in effect,®° and further, has failed to include provisions

punishing substantive offenses, such as Murder, Aggra-

vated Battery, and Reckless Conduct but instead has

merely sought to punish, with misdemeanor penalties,

standard violations.*! In the instant matter, Petitioners

have offered absolutely no solid indication that prosecu-

tions such as this one will in any way obstruct or con-

flict with the congressional intention behind, or with the

29 29 U.S.C. §667(a).

30 29 U.S.C. §653(bX4).

31 29 U.S.C. §666(e).

= =

enforcement of, the OSH Act. Instead, Petitioners engage

in rank speculation and unsupported guesswork, using im-

aginary “worst case” scenarios about “what might pos-

sibly happen” in hypothetical situations. (See, generally,

Petition at pp. 16-19, 21) Such hypotheticals do not have

any valid relationship to the charges in the case at bar,

and where, as here, there is no clearly established con-

flict between the enforcement of State law and the opera-

tion of the federal statute, this Court has repeatedly held

that such conflicts out not be sought out. See, Huron

Portland Cement Co. v. City of Detroit, Michigan, 362

U.S. 440, 446, 80 S.Ct. 813, 817-818, 4 L.Ed>2d 852, 858-

859 (1960); and Rice v. Norman Williams Co., 458 U.S.

654, 659, 102 S.Ct. 3294, 3298-3299, 73 L.Ed. 2d 1042, 1053

(1982):

.. . [P]Jre-emption should not be judged on the basis

that the federal government has so completely oc-

cupied the field of safety, that state remedies are

f reclosed, but on whether there is an irreconcilable

conflict between federal and state standards, or

whether the imposition of a state standard would

frustrate the objectives of the federal law. Silkwood

v. Kerr-McGee Corp., 464 U.S. 238, 256, 104 S. Ct.

615, 626, 78 L. Ed. 2d 448, 458 (1984).

The principal faults of the Illinois appellate court in its

opinion approving the preemption theory, an opinion which

Petitioners’ cite with approval, was its implicit accept-

ance of the theoretical and hypothetical conflicts raisec

by Petitioners and that Court’s incorrect assignment of

the burden of persuasion to the Respondent, rather than

to Petitioners. (Appellate Opinion, Petition, pp. 19a, 23a,

= oe

24a)8* Had that court not indulged in those fundamental

errors in approach, its decision would have been different.

In fact, state prosecution of crimes in this area, under

laws of general criminal application, can do nothing but

give assistance to the Congressional purpose in enacting

OSHA.

Stripped of its legalisms, Petitioners argument may be

seen for what effects its adoption would portend; immuni-

ty for employers (including corporations) as a class, no

matter how egregious, no matter how repugnant their

abuse of their employees. How tragically ironic if an act,

the primary purpose of which is the benefit of American

workers, were twisted into a shield for unscrupulous, un-

caring companies and executives to escape responsibility

for acts which, if committed by any other person, would

$2 People v. Chicago Magnet Wire Corp., 157 Ill. App. 3d 797,

510 N.E.2d 1173, 110 Ill. Dec. 142 (1st Dist. 1987). This opinion,

like that of the Supreme Court of Illinois in the same case, (Peo-

ple v. Chicago Magnet Wire Corp., 126 Ill. 2d 356, 534 N.E. 2d

962, 128 Ill.Dec. 517 (1989), restyled by Petitioners as Frank Asta

et al. v. State of Illinois, in this Court) is contained in the appen-

dix to the Petition For Certiorari filed by Petitioners. Page cita-

tions to both — are to the page(s) of that Appendix. The

opinion of the Illinois appellate court, as correctly noted by the

Wisconsin Court of Appeals, which declined to follow it, inappropri-

ately assumed the existence of conflicts, which were neither estab-

lished by Petitioners nor irreconcilable in nature and: “The Illinois

(Appellate) Court never acknowledged or discussed the rule that

an Act of Congress is presumed not to preempt state law, or that

the burden of showing preemption is upon the person claiming it.

Indeed, the court appears to have proceeded on the assumption

that the State had the burden to show lack of preemption.” State

ex rel. Cornellier v. Black, 144 Wis. 2d 745, 425 N.W. 2d 21 (Wis.

App. 1988). Cornellier was cited with approval by the Illinois su-

preme court in its reversal of the Illinois appellate court’s Magnet

Wire opinion. (See, Opinion, Petition p. 15a)

~~

be punished as crimes. This cannot have been what Con-

gress intended and there can be, therefore, no implied pre-

emption in this case.

Seen in this way, the question is not a close one, and

Respondent urges that certiorari accordingly be denied.

CONCLUSION

Respondent, the State of Illinois, respectfully requests

that the petition for a writ of certiorari be denied.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

TERENCE M. MADSEN

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

Attorneys for Respondent

CECIL A. PARTEE

State’s Attorney of Cook County

520 Richard J. Daley Center

Chicago, Illinois 60602

(312) 443-5489

JAY C. MAGNUSON

FRANK J. PARKERSON *

Assistant State’s Attorneys

Of Counsel * Counsel of Record

APPENDIX A

—-

STATEMENT OF FACTS

FROM THE

STATE’S BRIEF BEFORE

THE SUPREME COURT OF ILLINOIS

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STATEMENT OF FACTS !

Chicago Magnet Wire Corporation (hereinafter ‘““CMW’’)

is a Subsidiary or held company of North American Phillips.

The principal business done at CMW is the coating of wire

with various substances and chemical compounds. The in-

dividuals charged are officers or high managerial agents

of CMW. At all times pertinent to the charges, Anthony

Jordan was President of CMW, (R. 1006) Kevin Keane

was Plant Manager, (R. 1006-1007) Allan Simon was Plant

Engineer, (R. 1007) Frank Asta was Maintenance Fore-

man, (R. 1007) and Gerald Colby occupied a number of

positions, including those in control of engineering,

maintenance, and quality control. (R. 1007)

The physical problems at CMW apparently began short-

ly after the plant’s capacity was expanded in 1979-1980.

At that time CMW installed sixteen new ovens and began

to speed up its production. (R. 900) At one point produc-

tion was up 700% over capacity, and the business was

very profitable. (R. 1056) After this modification, plant

conditions appear to have worsened.

The plant air quality was very poor. It exuded an of-

fensive odor, and was very cloudy and smokey, so much

1 In their Response to the People’s Petition For Leave To Appeal

(hereinafter ‘‘Response” and “‘Petition’’, respectively) Defendants

criticized the People for allegedly failing to deal with the charged

conduct. (Response p. 3) Although the People submit that this

criticism is unjustified, due to the fact that this case has not yet

been tried, this statement of facts deals with the conduct the con-

duct underlying the charges as seemingly invited by Defendants.

The testimony cited is some of that taken before the Cook County

Grand Jury, and is part of the Record On Appeal. Needless to

say, the “facts” cited are only alleged at this point, since the Peo-

ple have not permitted to go to trial in this case, and they are

not all inclusive. This Statement of Facts will, however, give this

Honorable Court a good sample of what the People’s evidence at

trial would show.

A-2

so that vision was substantially impaired. (R. 1010) The

plant was also extremely hot, the floor temperature rang-

ing around 90 degrees in the winter and 120 degrees in

the summer. (R. 976) On the catwalks, where workers

were required to go, the situation was much worse. There

temperatures climbed as high as 250 degrees to 300 de-

grees, (R. 977) well above the boiling point of water.

The plant contained eighty-six ovens which operated at

between 800 degrees and 1,000 degrees (R. 978-979) Addi-

tionally, the plant contained extruder ovens which were

used to coat the wire with polyvinyl chloride, and which

overheated and smoked incessantly, (R. 979, 1047) and

procedyn ovens which burned off the polyvinyl chloride

and gave off a dense smoke. (R. 979)

At one point, every machine in the plant was unguarded,

and when wire strands would break, the spools of wire

would keep spinning, flinging wire fragments into em-

ployees’ faces, heads, necks and chests. (R. 1068) The

machines also sprayed a fine cil mist which covered

everything and hung in festoons, making the work area

very slippery and hazardous. (R. 1046) Aluminum and

copper dust coated the floors, (R. 1046) and in this close-

quartered atmosphere, pools of spent enamel were “all

over the place.” (R. 1032)

Alarms in the ovens were by-passed and Defendant Jor-

dan forbade their repair since to do so would have de-

creased production. (R. 1020-1021) In some cases, such as

that with one of the procedyn ovens, a machine was oper-

ated without all of its parts, even though the parts needed

to repair it were lying right next to the machine, because

Defendants did not want to stop production long enough

to fix the oven. (R. 1035)

Despite the frequent fires at the CMW plant, flammable

materials were stored on the catwalks to feed into the

system, (R. 1030-1031) there were gas leaks, and the

plant’s electrical system was defective. (R. 1053)

A-3

Until 1982, the plant averaged between 1,000 and 1,100

employee injuries out of a total of 225 factory employees.

(R. 1008)

Gary Olson, who was Safety Director at CMW between

1979-1983 (R. 1006) described CMW as a “sham” and a

“travesty”, (R. 1068) where most of the one hundred or

so employees who were disabled by occupational diseases

were fired, (R. 1043) where employees regularly “dropped

over” due to the heat and fumes, (R. 1046), and where

there was a constant flow of employees between CMW

and the hospital. (R. 1046) Having ambulances report to

CMW, Olson stated, “was not an unusual circumstance.”

(R. 1046)

Typical of the plight of the employees was that of Danny

Vaughn, a CMW employee from 1979, until March 30,

1983, who worked as a “late man” in the maintenance

department. (R. 975) Vaughn’s duties at the plant included

keeping the enamel floor machinery running. (R. 975) He

described the factory as smokey and hazy. Breathing was

difficult at the top of the plant, and his eyes watered,

his nose ran, he had dizzy spells and nausea. (R. 976) Hot

enamel frequently burned his skin, and resulted in scar-

ring. (R. 976)?

Mr. Vaughn was required to work on the catwalks

every night, (R. 980-981) where the temperature some-

times reached 300 degrees. (R. 977) While there, he had

to clean the sheaves, shutters, and hoods with trichloro-

ethylene, utilizing only cloth gloves, a paint brush and

paper towels. (R. 981, 984) The trichloroethylene soaked

through his gloves everytime, and would vaporize when

it hit one of the hot objects, giving off a vapor which

burned his eyes, made his nose run, and caused dizziness.

? Of course, not everyone found the enamel burns painful. One

employee, Reginald Bryson, got some hot enamel into his shoes,

was in an extreme amount of pain and was trying to get his shoes

off, while Defendant Kevin Keane, who was watching this inci-

dent, laughed at him. (R. 1004)

A-4

(R. 982)3 Mr. Vaughn was not. provided with a respirator

(R. 983), rubber gloves, (R. 985) or aprons. In fact, the

only safety equipment he was provided were shoes and

glasses, and the glasses were not vapor proof. (R. 987)

Most of the employees who worked cleaning up the enamel

spills were not provided any protective equipment either,

(R. 988) although they were compelled to clean up the

enamel spills with a 50/50 mixture of xylol and Cresylic

Acid, which they poured over mops and mopped the floor

with. (R. 983)4

Vaughn testified that he was on the catwalks himself

cleaning the sheaves, shutters and hoods three times per

night, (R. 985) and sometimes was on the catwalks up to

thirty times per night for other reasons. (R. 981) He

stated that breathing on the catwalks was very difficult

(R. 12) and that his face was only about twelve inches

from those spots where the trichloroethylene compound

he was using to do the cleaning was being turned into

vapor. (R. 982) During Vaughn’s four years at CMW, no

fresh air was pumped into the plant, (R. 989) the hoods

over the ovens would not pull the smoke away, (R. 989)

and only some of the applicator machines had doors on

them to keep the smoke inside the ovens. (R. 991)

3 Trichloroethylene is a fast soluble material much like ether,

which can be absorbed through the skin or inhaled. (R. 1063) It

is a central nervous system depressant and lung irritant. It can

cause brain damage, kidney and liver problems, and has been asso-

ciated with cardiovascular problems. When it comes into contact

with high heat or hot metal it vaporizes, creating by-products

7 oo phosgene gas, chloride gas, and hydrochloride acid.

a

4 Xylene, which was used at the plant, is a solution solvent ab-

sorbed through the skin and lungs. (R. 1063) It is very toxic, af-

fects the eyes and mucus membranes, and can cause narcosis. (R.

1064) Cresol produces central nervous system disorders, chronic

stomach and intestinal pain, and damage to the liver, kidneys and

lungs. (R. 1064)

———

A-5

Mr. Vaughn, who became concerned about his trouble

breathing, asked Defendant Frank Asta whether the chem-

icals in the plant were harmful, but was told that they

would not hurt his breathing. (R. 993)

Nevertheless, on March 15, 1983, while attempting to

repair one of the procedyn ovens which did not have all

of its parts (R. 1035) and was exuding polyvinyl] chloride,

(R. 994) Danny Vaughn, who still had been provided no

respirator, (R. 994) began to feel ill. After completing the

job, and upon being called to do another, he became un-

steady, saw “white dots” before his eyes, and noticed that

his throat was sore and his eyes watering. (R. 994) He

attempted to shake the condition by going outside to get

some fresh air, but that enly seemed to aggravate his

symptoms. (R. 994-995) He decided to go to the hospital,

but was informed that a taxicab would take at least 45

minutes, so he eventually drove himself there, despite the

numbness in his legs. (R. 995-997)

After returning to work, Mr. Vaughn again became ill

on March 30, 1983, while cleaning the shutters. He could

not breathe. (R. 995) Again he went to the hospital,

where, after undergoing some tests, it was determined

that his lungs were filled with fluid. (R. 996) Danny

Vaughn has not been able to work since that time. (R.

996) When he began working for Chicago Magnet Wire,

Danny Vaughn was in perfect health. (R. 997) Now he

has liver damage, bladder and respiratory problems, [neu-

rosis] (sic?) of the liver, severe headaches and hepatitis,

and is completely unable to work. (R. 996-997)

On at least one occasion, Traveler’s Insurance Company,

CMW Workers’ Compensation carrier, was requested to

do some testing. (R. 1011) When Defendant Jordan discov-

ered that one of CMW’s female employees had written

to Traveler’s he told CMW’s Safety Director to “cut her

tits off’, and make sure she never was able to work at

CMW again. (R. 1011) Jordan, in fact, maintained that

there was nothing wrong with the plant’s air, (R. 1012)

and that masks would never be used because the air was

A-6

fine, (R. 1027) although he did repeatedly refuse to per-

mit Traveler’s permission to test. (R. 1012-1013) Moreover,

Jordan refused to release to Traveler’s results of some

tests allegedly performed by Leon Kirschner, an industrial

hygiene consultant. (R. 1012-1013) CMW’s Safety Director

never saw Kirschner perform such tests. (R. 1013) In fact,

no testing was done at all until pressure forced one in

June, 1983. (R. 1013) Evidently, the pressure came from

the parent company and, typically, was caused by a con-

cern over excessively high insurance premiums. (R. 1016-

1019)

When Traveler’s was finally permitted to do some test-

ing, their conclusions were that the CMW plant was defec-

tive by reason of excessive heat, excessive sound, air

pollution, and poor management. (R. 1019)

Defendants Jordan and Colby told employees that there

was nothing in the plant that would hurt them, (R. 1021)

and Jordan did not want employees to wear masks be-

cause if they did, the employees might think there was

something wrong with the air. (R. 1027)® Once, when the

manager of engineering himself passed out in the plant

and injured his head on one of the ovens, Defendants

Keane’s suggestion to him was to “stay away from the

ovens.”’ (R. 1022)

Olson knew there was something very wrong with the

air, and argued with Defendants Jordan and Simon about

the problem. (R. 1023) He quoted OSHA standards to all

of the Defendants, (R. 1023-1024) but they all “felt that

we should get away with what we could get away with

until we got caught and suffer the consequences however

minor they would be.” (R. 1024) Additionally, Defendant

Keane amplified this position a bit, and stated that he

didn’t “give a fuck about the law” as it pertained to

respirators. (R. 1027)

5 Of course, the defendants occupied an air conditioned office.

A-7

When Olson met with Defendants Jordan, Keane and

Colby to discuss the large number of workers who were

becoming ill, Jordan ordered him to “stay the hell away

from it’? and to do what he was told or be fired. (R.

1028-1029) When Olson finaliy succeeded in getting a few

respirators, he was at first not permitted to give them

out, and then was precluded by Jordan from replacing the

filters in those few respirators which he did manage to

obtain. (R. 1019-1020)

When an air meter was finally obtained in the Spring

of 1983, it “went off” in virtually every part of the CMW

plant. (R. 1036)

Although OSHA did come in response to a complaint

in July, 1983, the plant was not going through its normal

operation because someone had been tipped off that they

were coming. (R. 1040)

When doctors called the plant for information necessary

to help employees who were their patients, they were not

given the requested information. (R. 1042) Olson knew

personally of one employee who was medically unable to

work because of breathing problems incurred at CMW,

whom Defendant Jordan fired. (R. 1043) Workers were

berated into returning from sick leave. (R. 1043) Olson

also knew of a guard who was fired because he made the

mistake of giving a doctor, whose worker-patient was in

the emergency room of a hospital with severe respiratory

distress, some necessary treatment information concern-

ing a chemical used at the plant. (R. 1043-1044)

Gloves were withheld from gas inspectors so that they

could not ascend hot ladders to check for leaks, (R. 1041)

and workers fired because they were too ill to work were

denied worker’s or unemployment benefits. (R. 1043) De-

spite explosion hazards, and constant fires, no evaluation

plan was put into practice because to do so would mean

a decrease in production. (R. 1033)

Doctor Mark Round, who examined or was familiar with

the cases of all the victims, testified that the aluminum

A-8

dust present in the plant, in conjunction with the heat

and trichloroethylene caused moderate to severe brain dam-

age, and has been associated with Altzheimer’s disease.

Moreover, Dr. Round stated, polyvinyl chloride causes

nervous disturbances and liver disorders, (R. 1068) copper

dust ulcerates the lungs and causes skin and hair discolor-

ation, (R. 1067) and methyl ethyl ketone, another solvent

used in the plant, causes eye irritation, and narcosis. (R.

1069-1070) Additional chemicals present at CMW were iso-

propanol, urethane, methyl pyrrolidon, methyl pentane,

ketone and naptha.

Tests for toxic chemicals were positive for all of the vic-

tims, and at least half of those chemicals used at the plant

showed up in the typical worker’s case. (R. 1073-1075) The

victims suffered from conditions and illnesses including

toxic dementia, solvent narcosis, toxic bronchitis, proteins

and blood in the urine, impotence, painful burning and fre-

quent urination, toxic hepatitis, and numbness in the ex-

tremities. (R. 1076-1077) It was Dr. Round’s expert opin-

ion that the conditions of the victims were caused by their

exposure to the chemicals used at CMW. (R. 1077)