COMMONWEALTH OF KENTUCKY v. LAWSON MARDON FLEXIBLE PACKAGING, INC.
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RENDERED: March 5, 1999; 2:00 p.m.
MODIFIED: March 26, 1999; 10:00 a.m.
ORDERED PUBLISHED BY THE KENTUCKY SUPREME COURT:
February 16, 2000; 1999-SC-0470-D
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001366-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 94-CR-00030
LAWSON MARDON FLEXIBLE
PACKAGING, INC.
APPELLEE
OPINION
VACATING AND REMANDING
* * * * * * * * * *
BEFORE: EMBERTON, GARDNER, and SCHRODER, JUDGES.
GARDNER, JUDGE.
The Commonwealth of Kentucky appeals from an
order of the Shelby Circuit Court entered on May 29, 1997,
dismissing with prejudice an indictment charging Lawson Mardon
Flexible Packaging, Inc. with one count of reckless homicide.
We
reverse and remand for further proceedings.
On August 30, 1993, an explosion and fire occurred at
the manufacturing plant of Lawson Mardon Flexible Packaging,
Inc.1 (hereinafter Lawson Mardon) in Shelbyville, Kentucky.
1
The
At the time of the incident, the company was known as
Alusuisse Flexible Packaging, Inc. The company later changed its
explosion occurred in a parts washing room where several
employees were using welding equipment to repair a washer.
Three
employees were seriously injured and one employee, Paul Bierly,
was killed.
Upon investigation, the State Fire Marshall
determined that the explosion was caused when the welding
equipment ignited flammable chemicals in a washing tank.
Shortly after the incident, the Kentucky Department of
Workplace Standards conducted an investigation.
Based on an
inspection of the plant, the Division of Compliance issued three
citations charging Lawson Mardon with violations of the Kentucky
Occupational Safety and Health (hereinafter KOSH) Standards
promulgated pursuant to Kentucky Revised Statute (KRS) 338.051.
Specifically the Division of Compliance cited the company for
violations of 29 CFR 1910.252 (adopted by 803 KAR 2:316) and 803
KAR 2:310 Section 1(2).
The citations alleged the following: 1)
the individual responsible for authorizing the welding did not
designate all appropriate precautions to be followed such as
checking the area for explosive conditions (29 CFR 1910.252
(a)(2)(iv)); 2) the employer failed to ensure that each employee
assigned to the fire watch where the welding was being performed
was trained in the use of fire extinguishers (29 CFR
1910.252(a)(2)(iii)(B)); and 3) the employer had not provided
adequate first-aid training of employees (803 KAR 2:310 Section
1(2)).
The citations ordered abatement of the conditions
name to Lawson Mardon Flexible Packaging, Inc.
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involved in the violations and assessed a total civil penalty of
$28,000.
Lawson Mardon challenged the citations by filing a
notice of contest pursuant to 803 KAR 2:140.
In December 1993,
the Secretary of Labor filed an administrative complaint before
the Kentucky Occupational Safety and Health Review Commission
alleging serious violations of the Kentucky safety and health
regulations.
In June 1994, while the administrative complaint was
pending, the Shelby County Grand Jury indicted Lawson Mardon on
one felony count of reckless homicide (KRS 507.050) arising from
the August 30, 1993 incident.
The indictment alleged that the
company “[r]ecklessly caused the death of Paul Bierly by failing
to perceive the substantial and justifiable risk of explosion
which constituted a gross deviation from the standard of care
that a reasonable person would observe in the situation as it
then existed.”
Under KRS 534.050(1)(a), the company was subject
to a maximum penalty of $20,000 upon a conviction of reckless
homicide, a Class D felony.
While the criminal indictment was pending, the parties
in the administrative proceeding reached a settlement.
Under the
settlement, Lawson Mardon agreed to withdraw its notice of
contest of the three citations, to complete abatement of the
conditions referred to in the citations, to pay the $28,000
penalty within thirty days, and to comply with all applicable
provisions and standards of Chapter 338 in the future.
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The KOSH
Review Commission approved the settlement in February 1995, and
it became final.
Following completion of initial discovery, Lawson
Mardon filed a motion to dismiss the criminal indictment in June
1996.
It maintained that the criminal prosecution violated the
Fifth Amendment of the United States Constitution as applied to
the states through the Fourteenth Amendment.
Lawson Mardon
argued that the Commonwealth was prohibited from bringing a
successive prosecution after the company had already been
punished by the administrative penalties.
In support of its
position, Lawson Mardon relied on the case of United States v.
Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989).
After the Commonwealth filed a response, the trial court held a
hearing and later denied the motion in December 1996.
On January 2, 1997, Lawson Mardon filed a motion to
reconsider the denial of the motion to dismiss.
Again the
Commonwealth filed a response arguing the double jeopardy claim
was inadequate under the “same elements” test established in
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.
Ed. 306 (1932), as reaffirmed in United States v. Dixon, 509 U.S.
688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).
The Commonwealth
contended that Lawson Mardon’s reliance on Halper was misplaced
because the Blockburger test was satisfied.
On May 29, 1997, the trial court issued an opinion and
order granting the company’s motion to dismiss the indictment.
The court held that the civil administrative penalties were
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“punishment” for purposes of double jeopardy as defined in United
States v. Halper, supra, and that the civil administrative action
and the criminal prosecution required proof of the same elements
under Blockburger.
This appeal followed.
The Commonwealth now argues that the trial court
committed reversible error in granting Lawson Mardon’s motion to
dismiss the indictment.2
Specifically it argues that the double
jeopardy clause is not implicated by civil fines, and in support
of this argument maintains that the actions of the Commission and
the grand jury related to separate and distinct bad acts.
Having
closely studied the facts, the law, and the arguments of counsel,
we must reverse and remand.
The Fifth Amendment provides that no individual shall
“be twice put in jeopardy of life and limb.”
This clause has
been interpreted to protect a criminal defendant from three
distinct state actions:
1) a second prosecution for the same
offense after acquittal; 2) a second prosecution for the same
offense after conviction; and 3) multiple punishments for the
same offense.
United States v. Ursery, 518 U.S. 267, 717, 116
S.Ct. 2135, 2139-40, 135 L.Ed.2d 549 (1996); Ohio v. Johnson, 467
U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984).
In
the matter at bar, we are concerned only with the “multiple
2
The Commonwealth erroneously concludes its appellate brief
by stating “[f]or the foregoing reasons, the judgment below
should be affirmed.” It concludes its reply brief by stating
“[f]or the foregoing reasons . . . the trial court’s order
dismissing the indictment should be reversed.”
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punishments” aspect of double jeopardy.
The dispositive
question, then, is whether the civil fine represents “punishment”
for purposes of Fifth Amendment protection.
In determining whether a sanction is properly
characterized as civil or criminal (and accordingly whether it
runs afoul of Fifth Amendment Protection), the United States
Supreme Court has set forth a two-part inquiry.
In Hudson v.
United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450
(1997), it stated that the trial court must determine 1) whether
the legislative body intended the designated sanction or penalty
to be civil, and 2) even if it was intended as civil in nature
whether its effect is so punitive that it renders the sanction
criminal despite its civil purpose.3
The court stated as
follows:
Whether a particular punishment is criminal
or civil is, at least initially, a matter of
statutory construction. (citation omitted.)
A court must first ask whether the
legislature, “in establishing the penalizing
mechanism, indicated either expressly or
impliedly a preference for one label or the
other.” (citation omitted.) Even in those
cases where the legislature “has indicated an
intention to establish a civil penalty, we
have inquired further whether the statutory
scheme was so punitive either in purpose or
effect,” . . . as to “transfor[m] what was
clearly intended as a civil remedy into a
criminal penalty,” Rex Trailer Co. v. United
States, 350 U.S. 148, 154, 76 S.Ct. 219, 222,
100 L.Ed. 149 (1956).
Hudson, 118 S.Ct. at 493.
3
In fairness to the trial court, we must note that Hudson
was rendered subsequent to the order now on appeal.
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In determining whether the statutory scheme is so
punitive as to transform it from a civil remedy into a criminal
penalty, Hudson directs us to what it describes as the “useful
guideposts” set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963).
S.Ct. at 493-94.
Hudson, 118
They are (1) whether the sanction involves an
affirmative disability or restraint; (2) whether it has
historically been regarded as a punishment; (3) whether it comes
into play only on a finding of scienter; (4) whether its
operation will promote the traditional aims of punishmentretribution and deterrence; (5) whether the behavior to which it
applies is already a crime; (6) whether an alternative purpose to
which it may rationally be connected is assignable for it; and,
(7) whether it appears excessive in relation to the alternative
purpose assigned.
Applying these principles to the facts at bar, we must
conclude that the penalties assessed against Lawson Mardon under
KOSH regulations were civil in nature.
First, KRS 338.011
clearly states that its purpose is to promote worker safety and
health.
It states in relevant part that,
Therefore, the General Assembly declares that
it is the purpose and policy of the
Commonwealth of Kentucky to promote the
safety, health and general welfare of its
people by preventing any detriment to the
safety and health of all employees, both
public and private, covered by this chapter,
arising out of exposure to harmful conditions
and practices at places of work and otherwise
to preserve our human resources by providing
for education and training, inspection of
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workplaces, consultation, services, research,
reports and statistics, and other means of
furthering progress in the field of
occupational safety and health.
Second, KRS 338.991 provides for “civil penalties” for
violations of KOSH regulations including up to $7,000 for each
serious violation under Subsection (2).
The designation of the
penalties as civil is a clear and unambiguous expression of
legislative intent.
See Hudson, 118 S.Ct. at 495.
And third,
the authority to impose penalties for violations of the KOSH
standards is placed in the Kentucky Occupational Safety and
Health Commission, an administrative body.
As the Court in
Hudson stated, “[t]hat such authority was conferred upon
administrative agencies is prima facie evidence that Congress
intended to provide for a civil sanction (citations omitted).”
Hudson, 118 S.Ct. at 495.
Having concluded that the General Assembly intended
Chapter 338 to impose civil rather than criminal penalties, we
turn to the second part of the analysis, i.e., whether the
sanctions are so punitive as to render them quasi-criminal
despite the legislature’s intent to the contrary.
This analysis
involves the seven Kennedy factors.
As noted above, the Kennedy analysis examines the
degree to which a penalty’s effect may properly be regarded as
criminal rather than civil.
In applying Kennedy to the facts at
bar, we cannot conclude that Chapter 338 may reasonably be
characterized as “[t]ransform[ed from] what was clearly intended
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as a civil remedy into a criminal penalty.”
493, 494.
Hudson, 118 S.Ct. at
While the imposition of a civil remedy (i.e., a fine)
may properly be regarded as punitive, the clear purpose of
Chapter 338 is to promote worker safety rather than achieve the
goals commonly associated with criminal punishment.
The record
does not demonstrate that the statutory scheme at issue is so
punitive in its application that it takes on the character of a
criminal statute.
As Hudson noted, “. . .’only the clearest of
proof’ will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal penalty.
. . .”
Hudson, 118 S.Ct. at 493, 494.
The “clearest proof” is
not present in the matter at bar, and as such we must conclude
that Chapter 338 is properly regarded as a civil statute both in
form and in application.
Accordingly, the imposition of
penalties thereunder does not bring about Fifth Amendment
protection from subsequent criminal prosecution.
For the foregoing reasons, the order dismissing the
indictment is vacated and the matter is remanded for proceedings
consistent with this opinion.
EMBERTON, JUDGE, CONCURS.
SCHRODER, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
A. B. Chandler, III
Attorney General
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BRIEF FOR APPELLEE:
John H. Harralson, III
Louisville, Kentucky
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