State v. Kailua Auto Wreckers, Inc.

• Citation: 62 Haw. 222,615 P.2d 730
• Decision Date: 10 July 1980
• Docket Number: No. 6598,6598
• Parties: , 10 Envtl. L. Rep. 20,951 STATE of Hawaii, Plaintiff-Appellee, v. KAILUA AUTO WRECKERS, INC.; Helen Weber as President-Treasurer and Director and Individually; Herbert R. Weber aka Roy Weber, as Vice-President-Secretary and Director and Individually; and Roy Joaquin, a Director, and Individually, Defendants-Appellants.
• Court: Supreme Court of Hawai'i

Page 730

615 P.2d 730

62 Haw. 222, 10 Envtl. L. Rep. 20,951

STATE of Hawaii, Plaintiff-Appellee, v. KAILUA AUTO WRECKERS, INC.; Helen Weber as President-Treasurer and Director and Individually; Herbert R. Weber aka Roy Weber, as Vice-President-Secretary and Director and Individually; and Roy Joaquin, a Director, and Individually, Defendants-Appellants.

No. 6598.

Supreme Court of Hawai'i.

July 10, 1980.

Rehearing Denied Aug. 11, 1980.

Syllabus by the Court

1. The discriminatory enforcement of a criminal law is unconstitutional and may be raised as a defense by a person so subjected.

2. The burden of proving discriminatory enforcement of the law rests upon the party raising the defense.

3. The selective enforcement of a criminal law is unconstitutional where it is the result of intentional or purposeful discrimination deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification. It is insufficient to show merely that other offenders have not been prosecuted or that there has been laxity of enforcement or that there has been some conscious selectivity in prosecution.

4. Where a defendant sustains the burden of establishing unconstitutional discriminatory enforcement of the law, he is entitled to dismissal of prosecution as a matter of law under the equal protection clause of both the Federal and State Constitutions.

5. A corporate officer may be held individually liable for a corporate penal law violation where he performs or causes the performance of the illegal act.

6. Under HPC § 702-228(2), if an affirmative duty to act is imposed by statute upon a corporation, the responsible corporate officers may be held personally liable for their reckless failure to perform such act.

7. Where corporate violations of public health regulations are involved, courts have held corporate officers personally liable irrespective of whether such officers performed or authorized the performance of the unlawful acts.

8. The purpose of the open burning regulation, PHR Ch. 43, Sec. 7 to protect the public from the hazards of air pollution warrants the imposition of a high standard of care upon officers of a corporation to insure corporate compliance with the law.

9. High corporate officers who possess managerial authority bear a personal responsibility to the public to exercise reasonable care to discover any violation of PHR Ch. 43, Sec. 7, to remedy any such violation of which the officer knows or should have known, and to prevent future violations.

John E. Parks, Honolulu, for defendants-appellants.

Laurence K. Lau, Deputy Atty. Gen., Dept. of the Atty. Gen., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and MARUMOTO and KOBAYASHI, Retired Justices, assigned by reason of vacancies.

RICHARDSON, Chief Justice.

Defendants-appellants, Kailua Auto Wreckers, Inc., H. Roy Weber and Helen Weber, appeal a conviction for openly burning automobiles on seventeen different occasions in violation of State Public Health Regulation (hereinafter PHR) Chapter 43, Air Pollution Control, Section 7, Control of Open Burning. ¹ We affirm.

All seventeen of the cited violations took place in 1976. At the time, appellant Kailua Auto Wreckers, Inc. (hereinafter KAW) was in the business of processing used cars for scrap metal; the cars were burned to rid them of non-metallic material, compressed into cubes called bales and sold to local scrap dealers. In 1976, appellant H. Roy Weber, was vice-president-general manager-secretary-director of KAW and was principally involved in managing the company. His wife, appellant Helen Weber, held the position of president-treasurer-director of KAW but did not actively participate in business operations. The couple were at the time the only directors, officers and employees of the closely held corporation.

For the period beginning March 12, 1974 through July 31, 1975, KAW had a variance from the air pollution regulation; an extension was applied for and denied on October 9, 1975. Thereafter, KAW engaged in open burning in violation of PHR Ch. 43, Sec. 7. Despite repeated oral and written warnings, the violations continued.

The uncontradicted evidence at trial, based on photographs as well as testimony by environmental health specialist Bruce Tillman and Katherine Hendricks and citizens Jerry Goodman and Dr. David Rodwell overwhelmingly established that the cited incidents did take place and that the violations were flagrant and continuous. Moreover, appellant Roy Weber confirmed the occurrence of these violations by admitting at trial that he openly burned automobiles in 1976 and that, during the period from 1969 through 1976, KAW openly burned a total of approximately 10,000 to 15,000 cars. He further admitted that in 1977 KAW still had not completed its air pollution emission control device.

The appellants' defense at trial was that the Department of Health had discriminatorily enforced the open burning ban against KAW, singling it out from among the large number of automobile open burners contemporaneously violating the regulation and thereby denying appellants equal protection of the law.

Initially, appellants KAW, H. Roy Weber and Helen Weber were charged for each of the seventeen violations under PHR Ch. 43, Sec. 7 and HRS § 342-23, a general prohibition against air pollution without a written permit from the director of health. At the close of trial, the lower court concluded that the violations had been established beyond any doubt and that the defense of discriminatory enforcement was not well-founded. Given that each incident originally entailed two counts, the trial judge struck the counts under the statute and found the appellants guilty severally and individually of violating PHR Ch. 43, Sec. 7. With respect to the first eight incidents referred to in the complaint, the lower court imposed a fine of $2,000 for each violation comprising a total fine of $16,000. ² With respect to the remaining nine incidents, the trial judge suspended imposition of sentence on the condition that there be no further violations for six months.

Two issues raised on this appeal warrant our consideration:

1. Whether the Department of Health in 1976 enforced the open burning ban in discriminatory manner against KAW violating the equal protection guarantee of the Fourteenth Amendment of the United States Constitution and Article I, Section 5 of the Hawaii Constitution.

2. Whether the corporate officers of KAW may be held personally liable for the corporation's repeated violations of PHR Ch. 43, Sec. 7.

We have considered the other issues raised by the appellants and find them to be without merit.

I. The Defense of Discriminatory Enforcement of PHR Ch. 43, Sec. 7.

Appellants contend that the Department of Health's selective enforcement of PHR Ch. 43, Sec. 7 unconstitutionally discriminated against KAW mandating reversal of the convictions below. Although this Court has never explicitly recognized discriminatory penal law enforcement as a defense in a criminal proceeding, ³ the United States Supreme Court has established that the discriminatory enforcement of a criminal law is unconstitutional and may be raised as a defense by a person so subjected. In Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961), petitioners alleged that the prosecutor had invidiously singled them out as his exclusive target and sought to enjoin his enforcement of Pennsylvania's Sunday closing laws. Injunctive relief was deemed properly denied by the United States Supreme Court; it reasoned that petitioners could adequately defend against any such proceeding at trial on the basis of unconstitutional discrimination. Id. at 588, 81 S.Ct. at 1138. The Court's holding thus assumed that the defense of discriminatory enforcement was available to a defendant in a criminal action. The availability of the defense was again implied by the Court in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). The petitioners' claim in Oyler was that West Virginia's habitual criminal statute had been discriminatorily administered in violation of their right to equal protection of the law. In rejecting petitioners' claim, the Court elaborated on the scope of the defense.

(T)he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification. Therefore, grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, (213 Or. 619, 325 P.2d 794 (1958)); cf.) Snowden v. Hughes, 321 U.S. 1, (64 S.Ct. 397, 88 L.Ed. 497) (1944); Yick Wo v. Hopkins, 118 U.S. 356, (6 S.Ct. 1064, 30 L.Ed. 220) (1886) (by implication).

368 U.S. at 456, 82 S.Ct. at 506. The clear implication of the above opinions is that discriminatory enforcement does constitute a valid defense in criminal proceedings. Cf. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (constitutional limits on prosecutorial discretion acknowledged in determining whether prosecutor's conduct violated defendant's due process rights).

The burden of proving discriminatory enforcement of the law rests upon the party raising the defense. United States v. Torquato, 602 F.2d 564, 569 (3rd Cir. 1979). That party must present sufficient evidence to establish the existence of intentional or purposeful discrimination, Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944), ⁴ that is "deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification." Oyler v. Boles, 368 U.S. at 456, 82 S.Ct. at 506. It is insufficient to show merely that other offenders have not been prosecuted, Moss v....