Stock v. Alaska

Crim. No. 73-3 (Alaska Super. Ct. May 31, 1973)

The president of a corporation was properly convicted of a criminal violation of the Alaskan anti-pollution statute for allowing raw sewage from a corporation-owned trailer park to flow into state waters. The statute is not unconstitutionally vague, nor are its penalty provisions in violation of equal protection guarantees. The head of a corporation can be held criminally liable for the acts of his organization under Alaskan law when he knows of the violation, and has authority to prevent its occurrence or continuance and fails to do so. The court confirms the conviction and remands the case to the district court for sentencing.

Counsel for Appellant
Robert B. Baker
Robertson, Monagle, Eastaugh and Bradley
P.O. Box 1211
Juneau, Alaska 99801

Counsel for Respondent
Ralph Stemp Assistant Attorney General
Pouch K, State Capitol
Juneau, Alaska 99801

[3 ELR 20570]

Carlson, J.

AMENDED MEMORANDUM OF DECISION AFFIRMING CONVICTION AND REMANDING FOR SENTENCING

The appellant, Dave Stock, was charged in the district court with violating AS 46.03.710. It was alleged Mr. Stock allowed improperly treated sewage to drain from Sprucewood Trailer Court into Duck Creek. The appellant was convicted after trial by jury and sentenced pursuant to AS 46.03.790 to serve 30 days in jail and pay a fine of $1,000 with the jail time suspended on certain conditions.

Mr. Stock appeals on the grounds that:

1. AS 46.03.710 is unconstitutionally vague;

2. The State of Alaska failed to comply with AS 46.03.130;

3. The State of Alaska failed to prove facts from which the jury could find that Mr. Stock, the president of the corporation owning the trailer court which produced the sewage, was guilty;

4. The penalty provisions of AS 46.03.760 and 790 violate the equal protection clauses of the United States and Alaska Constitutions;

5. Punishing the appellant pursuant to AS 46.03.790 was improper since a willful violation of the statute was neither alleged nor proved; and

6. The penalty provisions of AS 46.03.790 are unconstitutional because the costs of prosecution may be included in the sentence.

The State of Alaska charged Mr. Stock with permitting untreated sewage to flow from a pond of raw sewage via an open ditch into Duck Creek. The raw sewage pond collected the effluent from Sprucewood Trailer Court, an enterprise owned by Stock and Grove, Inc. of which Mr. Stock is the president.

The appellant claims AS 46.03.710 is vague and therefore denies him due process as guaranteed by the Alaska and United States Constitutions. The Alaska Supreme Court has established the constitutional test in Harris v. State, 457 P.2d 638, 647 (Alaska 1969):

"The current approach to defining criminal conduct is that of specifying in objective terms the acts and intent prohibited. There are many instances in which the law resorts to the general understanding of the community as the standard of legal result. But where the conduct is to be prohibited by a criminal statute is capable of objective definition by language descriptive of precise physical acts and events, it simply will not do to use language so ambiguous as to be capable of expansion or contraction at the whim of the reder."

Applying the above standard as elucidated in Marks v. City of Anchorage, 500 P.2d 644, 646 (Alaska 1972), I find that AS 46.03.710 as defined in AS 46.03.900 (15) is not void for vagueness.

The appellant's second contention is that the State of Alaska must proceed under AS 46.03.130 by issuing notices and compliance order before a criminal prosecution could be initiated. The appellant is in error; no such requirement is imposed and the State may initiate prosecution at any time it has probable cause to secure the issuance of a summons or warrant. Rule 4 (a), Alaska Rules of Criminal Procedure.

In reviewing appellant's claim that there was insufficient evidence introuced from which the jury could find him guilty the standard to be applied is: could fair-minded jurors differ as to the guilt of the appellant, was there evidence from which a fair-minded juror could find the appellant guilty? Otis Elevator Company v. McLaney, 406 P.2d 7 (Alaska 1965).

The appellant concedes that the jury knew he was the president of the corporate owner, that he knew of the pollution caused by activity of his corporation, that he promised to take steps to alleviate the problem and that the problem was not remedied, the ditch from the pond of sewage to Duck Creek continued to conduct improperly treated sewage into the waters of the State.

The appellant argues because he did not dig the ditch or order it dug he is immune from prosecution.

Both parties agree that the court in City of Cincinnati v. Duval, 260 N.E.2d 127 (Ohio Appeals 1970) correctly states the law to be applied in determining if a corporate officer is personally liable for criminal acts which occur through actions of the corporation. The Ohio law on corporate officer criminal responsibility is succinct and is consonant with modern views of jurisprudence. The Duval court quotes 12 Ohio Jurisprudence 2d 673, Corporations, Section 548:

"The fact that a person is an officer or agent of a corporation does not, of itself, impose criminal liability upon him for the violation of a criminal statute by the corporation. * * * before a corporate officer can be guilty of the violation of a penal statute, it must appear that he was either actively engaged in the performance or direction of the act complained of, or that he knew of the violation or proposed violation of the law, and that although he had the authority to prevent its occurrence or continuance he failed to do so. * * *"

Applying the law of the Duval case the jury could have found that Mr. Stock knew of the violation and having authority to prevent its continuance he did not do so. The appellant received instructions as to liability for crime of corporate officers more favorable than he was entitled. The issue of passive responsibility was not fully explained, the jury was informed that guilt could be found only if they found appellant to have acted personally or in his capacity as the president of Stock and Grove, Inc. if he commanded, directed or consented to the prohibited act. Instruction Nos. 12 and 13.

The verdict of the jury is supported by sufficient evidence.

The remaining points on appeal concern the penalty provisions of AS 46.03. The appellant contends that AS 46.03.760 and 790 violate the equal protection clauses of the United States and Alaska Constitutions. AS 46.03.760 provides:

"Pollution penalties. (a) A person who violates §§ 710, 730, 740, or 750 of this chapter is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $25,000, or by imprisonment for not more than one year, or by both. Each unlawful act constitutes a separate offense.

AS 46.03.790 provides:

"Wilful violation. (a) A person found guilty of wilfully violating a provision of this chapter, or a regulation written order, or directive of the department or of a court made under this chapter is guilty of a misdemeanor, and upon conviction shall be punished by a fine or not more than $1,000 and costs of prosecution, or by imprisonment for not more than one year, or by both such fine, cost, and imprisonment at the discretion of the court.

(b) Each day upon which a wilful violation occurs may be considered a separate and additional violation."

The appellant was charged with violating AS 46.03.710 as follows:

". . . that on or about the 27th day of July, 1972, at or near Juneau, in the First Judicial District, State of Alaska, Dave Stock d/b/a Sprucewood Trailer Court did unlawfully pollute the water of the state by allowing improperly treated sewage to drain from Sprucewood Trailer Court into Duck Creek. . . ."

There was no allegation of willfullness and the appellant could not be sentenced pursuant to AS 46.03.790. However, the appellant may be sentenced pursuant to AS 46.03.760 unless AS 46.03.760 unconstitutional.

The Alaska Supreme Court in Green v. State, 390 P.2d 433 (Alaska 1964) considered the constitutionality of penalties at page 434:

"The defendant does not say that a minimum sentence of fifteen years for second degree murder is in itself cruel or unusual or a denial of due process but claims that it becomes such when matched against the one-year minimum sentence implicit in that part of the first degree murder statute which prescribes an alternative penalty of imprisonment at hard [3 ELR 20571] labor for any term of years. On that score the Weems and Robinson cases are of little help to his cause for they each treat only of the penalty provisions of a single criminal stature. We have carefully examined these two cases and find nothing stated therein which would lead us to believe that Supreme Court would consider it an infliction of cruel and unusual punishment or an infringement of the due process clause in any other respect for Alaska to provide a possible lighter minimum sentence for first degree murder than for second degree murder as has been done in our murder statutes. We say this with conviction for the reason that first degree murder carries a more severe penalty than does second degree murder in that imprisonment for the crime of first degree murder must be served at hard labor regardless of the duration of such imprisonment.

There are a number of states in which the courts have held that punishment for crime must be proportioned to the offense. Such holdings have usually been based upon the enunciation of the restriction in the respective state constitutions that penalties shall be proportioned to the nature of the offense. The Alaska Constitution, though of recent origin, contains no such restriction, nor does one appear in the federal constitution. We conclude, therefore, that in this jurisdiction punishment for crime need not be strictly proportioned to the offense. Only those punishments which are cruel and unusual in the sense that they are inhuman and barbarous, or so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice may be stricken as violating the due process clauses of the state and federal constitutions. Such punishments would also be void under article I, section 12 of the Alaska Constitution which declares that cruel and unusual punishments shall not be inflicted.

We do not regard the minimum penalty of fifteen years imprisonment prescribed by our second degree murder statute (AS 11.15.030) as being either cruel or unusual. Nor can it reasonably be said that this penalty provision of the statute deprived the defendant of the equal protection of the law, for under the statute all persons convicted of second degree murder are subject to the same minimum penalty. The statute, AS 11.15.030 is therefore held to be valid and constitutional." [footnotes omitted].

In Alex v. State, 484 P.2d 677 (Alaska 1971) Chief Justice Boney speaking for the court in considering the escape statute which defines the nature and penalty of the offense of escape depending upon the escapee's original conviction stated at page 684:

"The requirements of equal protection amount to a prohibition of laws which, in their application, make unjust distinctions between persons. If a rational basis for a classification is reasonably apparent, there is no denial of equal protection. It is elementary that the power to define crimes and fix punishments rests in the legislature. In the performance of that function, that body is to use the discretion lodged in it, and not be confined by narrow or unduly restrictive limits. We cannot say that a legislative judgment was unreasonable if it bears a rational connection to a legitimate public purpose.So long as a legislative classification is not based upon an arbitrary or unjustifiable distinction and does not invidiously discriminate between two groups, there is no denial of equal protection.

The question presented here is whether AS 11.30.090 adopts a reasonable classification, or whether the classification is unjust, arbitrary and without rational connection to a legitimate public purpose.

Under our statute, the crime of escape is divided into two classes on the basis of the felony or misdemeanor classification of the crime for which a person was initially incarcerated. All those within each class are subject to identical treatment. Under each class the punishment to be received is not arbitrarily or mandatorily fixed. Rather, the sentencing judge is given a range of discretion to be used in dealing with each offender.

It is true that under our statute the character and nature of an escape are not necessarily the basis upon which the crime is defined and the punishment fixed. However, the nature and method of an escape may well be considered by the judge when he exercises his discretion under the sentencing provisions. Moreover, there is no constitutional necessity for the designation of the crime and the extent of the punishment to be based solely or even in part on the nature of the escape.

The law has long recognized a relation between the punishment for the escape and the offense for which the prisoner was held. Accordingly, the law has allowed more severe punishments for the escape of prisoners confined for a serious crime than for the escape of prisoners held for lesser crimes. There is a broad latitude permitted to the legislature in classification so long as the distinctions made are supported in reason and logic. If there is some reasonable basis for a classification, it is not arbitrary or constitutionally invalid.

Save only as limited by constitutional safeguards, the legislature may chose any reasonable means to protect the people from the violation of criminal laws. In general, the comparative gravity of offenses and their classification and resultant punishments is for legislative determination. In the present case, reasonable factors in support of the legislative classification are apparent. The legislature could reasonably have believed that persons convicted of felonies which are generally more serious crimes than misdemeanors, present a greater threat to the public. Thus, a greater effort to deter their escape may reasonably be made. In addition, the legislature may have considered that felons are generally confined for a period of greater duration than are misdemeanants. The legislature could reasonably have felt that longer detention increases the motivation to escape and necessitates greater penalties to deter felons from escaping. We cannot know exactly what the legislature may have believed, nor do we intend to delineate every ground which might have supported their conclusion. It is sufficient that their determination was not unreasonable and without rational connection to a valid public purpose." [footnotes omitted].

Applying the law of the Green and Alex cases to the present case I find that AS 46.03.760 and 790 do not contravene the United States or Alaska Constitutions.AS 46.03.760 punishes acts of pollution no matter how long the condition continues to exist. AS 46.03.790 punishes willful violation of the statute and regulations and makes each day of a willful violation a separate offense. The legislature could reasonably classify criminal acts as it did in order to achieve the enunciated purpose of protecting the environment. AS 46.03.010.

The appellant's contention that unbridled discretion is vested in the prosecutor to charge a willful violation or a nonwillful violation is without constitutional merit. The legislation could have been more artfully drafted but the differences in elements of the offenses which trigger the imposition of the possible penalties and the fact that the penalties are not grossly disproportional with one another, both are misdemeanors with a maximum incarceration of one year, do not rise to being violations of the due process or equal protection clauses of the United States and Alaska Constitutions.

This case is remanded to the District Court for sentencing in accordance with AS 46.03.760.It is unnecessary to consider the remaining points raised by the appellant in light of this decision.

DATED at Juneau, Alaska, this 31st day of May, 1973.