Opposition Brief — Sabine Consolidated, Inc. v. Texas

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

—_— = — —_

No. 92-72

In The

Supreme Court of the United States

October Term, 1992

SABINE CONSOLIDATED, INC. and

JOSEPH TANTILLO,

Petitioners,

THE STATE OF TEXAS,

Respondent

¢ a

On Petition For A Writ Of Certiorari

To The Texas Court Of Criminal Appeals

RESPONDENT'S BRIEF IN OPPOSITION

a e en

KEN ODEN

Travis County Attorney

GISELLE HORTON

Assistant County Attorney

314 West Eleventh Street

Suite 300

Austin, Texas 78701

(512) 473-9415

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

|. In light of the Occupational Safety and Health

Act provision that expressly preserves state statutory

rights and duties, did the court below err in enforcing

Texas’ criminally negligent homicide statute for crimes

Petitioners committed in the workplace?

2. Is the Texas Occupational and Safety Act uncon-

stitutionally vague?

TABLE OF CONTENTS

Page

QUESTIONS PRESEN hes «5c i uisueu aes eee i

TABLE OF AUTHOR Ri iacieenG ins es cee iii

STATEMENT OF THE CARE soci eee 2

REASONS WHY THE PETITION SHOULD BE

DENIED. ..o..4 05 0000 es =a poe ee eee eae 2

The Texas Court of Criminal Appeals did not

decide whether the OSH Act expressly preempts

the Texas Occupational Safety Act (TOSA)....... 2

Neither state nor federal decisions are in conflict

on the question of whether the OSH Act preempts

a state’s prosecution under state statutes of general

applicability for crimes committed in the work-

DIACE. i icc ec sieves s Oe kee Ree ee 3

The decision that the Texas Occupational Safety

Act is not unconstitutionally vague is not in con-

fiict with any decisions of this Court, United States

circuit courts, or state courts of last resort....... 7

CONCLUSION «ci... S45 Five ee ees 8

iii

TABLE OF AUTHORITIES

CASES

Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628

ee eich acest

Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir.

MR oe rt re, ee,

McElroy v. SOS Intern. Inc., 730 F.Supp. 803 (N.D.

ar ea vec ca diese lays

Michigan v. Hegedus, 443 N.W.2d 127 (Mich. 1989)

National Solid Wastes Management Ass‘n v. Killian,

918 F.2d 671 (7th Cir. 1990), aff'd sub nom. Gade

v. National Solid Wastes Management Ass‘n, No.

90-1676, US. __ (1992)...............0c5,

P & Z Co., Inc. v. District of Columbia, 408 A.2d

WR PN, ois osc ccc cries ku twseacess

Pedraza v. Shell Oil Co., 942 F.2d 48 (1st Cir. 1991)

People v. Chicago Magnet Wire Corp., 534 N.E.2d 962

(Ill. 1989), cert. denied sub nom. Asta v. Illinois,

are ate SOa. 82 9 <r ee e.

People v. Pymm, 561 N.Y.S.2d 687, 563 N.E.2d 1

(N.Y. 1990), cert. denied, 111 S.Ct. 958 (1991) ..

State ex rel. Cornellier v. Black, 144 Wis.2d 745, 425

We aee ee Cee. 50. ADD. 29GB). . ww. ness cda ns

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

United States v. Mazurie, 419 U.S. 544 (1975).....

United States v. National Dairy Products Corp., 372

NI kak bvdv-wk << don adved evs

United States v. Powell, 423 U.S. 87 (1975) .......

TABLE OF AUTHORITIES — Continued

STATUTES

aes ee EW Oe I aa ee rarest reese cece tons

Ee Rds te Ries he cs hee Aaa Ree Cee

TEX. PENAL CODE ANN. § 6.01(c) (Vernon 1974) ...

TEX. PENAL CODE ANN. § 19.07 (Vernon 1974)

TEX. REV. CIV. STAT. ANN. art. 5182a § 3 (Vernon

Eg TO be Snes MESA) Sn AEE AE

OTHER SOURCES

Note, Getting Away with Murder: Federal OSHA

Preemption of State Criminal Prosecutions for

Industrial Accidents, 101 Harv.L.Rev. 535 (1987)

Page

PAM 3

i oe Se a

No. 92-72

In The

Supreme’ Court of the United States

- October Term, 1992

SABINE CONSOLIDATED, INC. and

JOSEPH TANTILLO,

Petitioners,

YW.

THE STATE OF TEXAS,

Respondent.

On Petition For A Writ Of Certiorari

To The Texas Court Of Criminal Appeals

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, the State of Texas, by and through the

Travis County Attorney, respectfully requests that this

Court deny the petition for writ of certiorari seeking

review of the opinions of the Texas Court of Criminal

Appeals and the Texas Court of Appeals, Third District.

Those opinions are reported at 806 S.W.2d 553 (Tex. Crim.

App. 1991), and 816 S.W.2d 784 (Tex. App. — Austin 1991,

pet. ref’d), respectively.

STATEMENT OF THE CASE

On September 10, 1985, a 27-foot-deep excavation

trench collapsed, burying and killing two of Petitioners’

employees. It is undisputed that the trench walls were

composed of dirt and clay and that Petitioners failed to

take adequate safety precautions to prevent the collapse

of the walls. It was also established that heavy machinery

was being operated in close proximity to the trench and

the site of the trench wall failure.

The State of Texas charged Petitioners with crimi-

nally negligent homicide by virtue of a failure to act. TEX.

PENAL CODE ANN. §19.07 (Vernon 1974). To so allege,

there must be a statutory duty to act. TEX. PENAL CODE

ANN. §6.01(c) (Vernon 1974). The Texas Occupational

Safety Act (TOSA), which imposes on employers the gen-

eral duty to provide their workers with safe workplaces,

supplied that statutory duty. TEX. REV. CIV. STAT. ANN.

art. 5182a §3 (Vernon 1987).

Petitioners pleaded nolo contendere to the State’s

allegations.

REASONS WHY THE PETITION SHOULD BE DENIED

The Texas Court of Criminal Appeals did not decide

whether the OSH Act expressly preempts the Texas

Occupational Safety Act (TOSA).

Petitioners’ First Question asks whether the State’s

prosecution under a state penal statute of general appli-

cability is preempted when that statute is “not being

eee

WwW

utilized as a general criminal statute but as an enforce-

ment provision for the Texas Occupational Safety Act

(TOSA), which is expressly preempted by OSHA.” (Peti-

tion, p. i). But the Texas court was not called upon to

decide and did not decide whether TOSA is expressly

preempted by OSHA. Rather, the Texas court considered

“whether the Occupational Safety and Health Act of 1970

(OSHA or the Act) (29 U.S.C. §651 et seq. 1982) preempts

Texas from prosecuting appellants for criminally negli-

gent homicide.” (Petition App., p. 12). Hence, the only

federal question the Texas Court of Criminal Appeals’

opinion presents is whether OSHA preempts a state’s

criminal prosecution under a penal statute of general

applicability for crimes committed in the workplace.

Furthermore, the Texas criminally negligent homicide

statute was not used as an enforcement provision for

TOSA, as Petitioners assert. Rather, TOSA supplied

merely one element of criminal conduct — the statutory

duty to act — that Texas law requires whenever the State

alleges an offense by voluntary omission. TEX. PENAL |

CODE ANN. §6.01(c).

Neither state nor federal decisions are in conflict on the

question of whether the OSH Act preempts a state’s

prosecution under state statutes of general applicability

for crimes committed in the workplace.

1. The Texas Court of Criminal Appeals’ decision

does not conflict with applicable decisions of other state

courts of last resort. Every state court that has considered

the specific question of OSHA’s preemptive effect on state

criminal laws of general applicability has given effect to

the plain meaning of the OSH Act’s savings clause and

concluded that OSHA does not preempt such laws. 29

U.S.C. §653(b)(4); People v. Pymm, 561 N.Y.S.2d 687, 563

N.E.2d 1 (N.Y. 1990), cert. denied, 111 S.Ct. 958 (1991)

(OSHA standard does not bar state criminal prosecutions

for conspifacy and assault for failure to adequately pro-

tect from dangers of mercury poisoning); People v. Chicago

Magnet Wire Corp., 534 N.E.2d 962 (Ill. 1989), cert. denied

sub nom. Asta v. Illinois, 110 S.Ct. 52 (1989) [OSH Act does

not preclude enforcement of state criminal law as to

conduct (failure to provide safety precautions to avoid

harmful exposure to toxic substances) regulated by

OSHA standard]; Michigan v. Hegedus, 443 N.W.2d 127

(Mich. 1989) (existence of OSHA regulations governing

emissions did not preempt involuntary manslaughter

prosecution arising out of worker’s death by carbon

monoxide inhalation); State ex rel. Cornellier v. Black, 144

Wis.2d 745, 425 N.W.2d 21 (Wis. Ct. App. 1988) (homicide

prosecution arising out of employer’s failure to correct

known and substantial fire and explosion hazards was

not barred by OSHA standard); P & Z Co., Inc. v. District

of Columbia, 408 A.2d 1249 (D.C. 1979) (criminal prosecu-

tion for employer’s failure to repert workplace injuries

was not preempted by OSHA standard); see also, Note,

Getting Away with Murder: Federal OSHA Preemption of

State Criminal Prosecutions for Industrial Accidents, 101

Harv.L.Rev. 535 (1987).

Petitioners seek to reinstate the result reached by the

intermediate appellate court. Notably, Petitioners and the

intermediate court relied on the reasoning of the inter-

mediate Illinois court’s decision in People v. Chicago Mag-

net Wire, 510 N.E.2d 1173 (Ill. App. 1987), reversed, 534

N.E.2d 962 (lil. 1989), cert. denied sub nom. Asta v. Illinots,

110 S.Ct. 52 (1989). However, the intermediate Illinois

court’s decision was reversed by the Illinois Supreme

Court, and this Court declined to review the Illinois

Supreme Court’s holding.

Petitioners cite Thornock v. State, 745 P.2d 324 (Mont.

1987), in support of their conflicting-state-decisions asser-

tion. But Thornock is highly distinguishable from Peti-

tioners’ causes. The Thornock decision did not address

whether a valid state criminal cause of action was pre-

empted. Rather, it addressed whether the state was still

under a common-law duty to inspect “hazardous work-

places” even though its authority to set the standards to

be inspected or to impose sanctions for discrepancies had

been superseded by OSHA safety standards for sawmills.

The Montana Supreme Court determined that, since the

power to inspect the workplace is part and parcel of the

enforcement of OSHA standards, the State had no duty of

inspection under Montana state common law, and there-

fore no state cause of action in negligence arose out of the

State’s failure to inspect. As the Montana court deter-

mined that there was no state law cause of action, the

question of whether a valid state cause of action is pre-

empted by OSHA never arose and was never addressed.

Furthermore, the McElroy v. SOS Intern., Inc. opinion

does not support Petitioners’ positions, as they claim.

(Petition, p. 19). On the contrary, McElroy distinguished

Thornock as a singular case in the body of OSHA-preemp-

tion caselaw, one involving a specific state occupational

safety and health standard rather than preemption of state

law in general. 730 FSupp. 803, 809 n.7 (N.D. Ill. 1989).

The McElroy opinion relied on reasoning — that of the

Illinois Supreme Court in Chicago Magnet Wire — that

flatly is at odds with Petitioners’ positions on the pre-

emption issue.

Petitioners buttress their reliance on Thornock by

additionally pointing out that Thornock was cited as

authority in National Solid Wastes Management Ass‘n v.

Killian, 918 F.2d 671, 678 (7th Cir. 1990), aff'd sub nom.

Gade v. National Solid Wastes Management Ass'n, No.

90-1676, ___ U.S. ____ (1992). (Petition, p. 19). They fail to

mention, however, that the Sabine opinion also was cited

as authority for the very same proposition for which

Thornock was cited: that state and federal courts are in

agreement that section 18 of the OSH Act expressly pro-

hibits states without federally approved plans from exer-

cising jurisdiction over an occupational health and safety

matter as to which OSHA has already duly promulgated

a federal standard. Id. The National Solid Wastes Manage-

ment case did not specifically address the issue of

whether the application of a state criminal statute of

general applicability is preempted by OSHA. However, in

its discussion of what constitute preempted “occupa-

tional safety and health standards,” this Court empha-

sized that section 18 does not preempt enforcement in the

workplace of private rights and remedies traditionally

afforded by state laws of general application. Gade v.

National Solid Wastes Management Ass‘n, No. 90-1676, ___

U.S. ___ (1992); see also, Pedraza v. Shell Oil Co., 942 F.2d 48

(Ist Cir. 1991).

2. Moreover, the Texas court’s holding on the pre-

emption issue does not conflict with that of any United

States court of appeals. Petitioners’ bare citations to the

inapplicable cases of Frohlick Crane Service, Inc. v. OSHRC,

521 F.2d 628 (10th Cir. 1975), and Jeter v. St. Regis Paper

Co., 507 F.2d 973 (5th Cir. 1975), do not support their

conflicting-federal-decisions assertion. In footnote 9 of its

opinion, the United States Court of Appeals for the Sev-

enth Circuit underscored this lack of conflict among state

and federal courts that have considered the question of

section 18’s preemptive effect upon state criminal and

tort rules. National Solid Wastes Management Ass‘n v.

Killian, 918 F.2d 671, 680 n.9 (7th Cir. 1990), aff'd sub nom.

Gade v. National Solid Wastes Management Ass‘n, No.

90-1676, __ U.S. ___ (1992).

The decision that the Texas Occupational Safety Act is

not unconstitutionally vague is not in conflict with any

decisions of this Court, United States circuit courts, or

State courts of last resort.

Petitioners have failed to allege a conflict in this

Question and merely attempt to distinguish two Supreme

Court cases that do not support their legal positions. The

court of appeals correctly examined Petitioners’ vague-

ness challenge in light of the facts and the context of this

particular case, that is, on an as-applied basis. United

States v. Powell, 423 U.S. 87 (1975); United States v.

Mazurie, 419 U.S. 544, 550 (1975); United States v. National

Dairy Products Corp., 372 U.S. 29 (1963). Petitioners do not

argue that TOSA was unfairly applied to them. And they

could not actually have doubted that their failure to slope

and shore a twenty-seven-foot deep trench deprived the

deceased employees of a “reasonably safe and healthful”

place of employment.

‘e 0)

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,