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Mass.) (Appellate Brief) Supreme Judicial Court of Massachusetts COMMONWEALTH, v. LIFE CARE CENTERS OF..., 2010 WL 3612917... 2010 WL 3612917 (Mass.) (Appellate Brief) Supreme Judicial Court of Massachusetts. COMMONWEALTH, v. LIFE CARE CENTERS OF AMERICA, INC. No. SJC-10546. February 23, 2010. Appellant Life Care Centers of America, Inc.'s Reply Brief on Report of Questions of Law Pursuant to Mass. R. Crim. P. 34 By Counsel for the Defendant, Don Howarth (pro hav vice), Suzelle M. Smith (pro hac vice), Howarth & Smith, 523 West Sixth Street, Suite 728, Los Angeles, CA 90014, (213) 955-9400, R. Matthew Rickman (BBO # 637160), Alathea E. Porter (BBO # 661100), LibbyHoopes, P.C., 175 Federal Street, Suite 800, Boston, MA 02110, (617) 338-9300. *i TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES ................................................................................................... ii I. Proper Application of the Doctrine of Respondeat Superior to a Criminal Case Is Not in Dispute ............ 1 A. Beneficial Finance Holds that Only if the Commonwealth Proves individual Employees Committed a 6 Crime Can the Corporate Employer Be Liable .............................................................................................. B. Merely Negligent Acts May not be Aggregated to Create a Crime ........................................................... 11 II. Proof Of Bad Purpose Is Required Under § 38 ......................................................................................... 13 III. Fairness Requires Prospective Application If The Court Adopts The Proposed Aggregation Doctrine ... 17 IV. Conclusion ................................................................................................................................................. 20 CERTIFICATE OF COMPLIANCE .............................................................................................................. 21 CERTIFICATE OF SERVICE ........................................................................................................................ 22 *ii TABLE OF CASES AND AUTHORITIES Statutes C.L. c. 265, § 13K(d1/2 ) ...................................................... 16 G.L. c. 265, § 38 (since repealed) ......................................... 11, 13, 14, 15, 16, 17 Rules Mass. R. Crim. P. 34 ............................................................. 2 Case Law Apprendi v. New Jersey, 530 U.S. 466 (2000) ...................... 18 Birbiglia v. St. Vincent's Hospital, 427 Mass. 80 (1998) ....... 4, 19 Bouie v. City of Columbia, 378 U.S. 347 (1964) ................... 19 Brown v. Quinn, 406 Mass. 641 (1990) ................................ 15 Clairborne & Hughes Convalescent Ctr., Inc. v. State 15 Department of Health, 88 S.W. 2d 671 (Tenn. Ct. App 1994) ...................................................................................... Commonwealth v. Angelo Todesca Corp., 446 Mass. 128 8 9, 11 (2006) ..................................................................................... Commonwealth v. Armand, 411 Mass. 167 (1991) ............... 15, 16 *iii Commonwealth v. Beneficial Fin. Co., 360 Mass. 188 1, 3, 6, 7, 8, 9, 10, 12, 13, 18, 20 (1971) ..................................................................................... Commonwealth v. Erikson, 74 Mass. App. Ct. 172 (2009) .... 16 Commonwealth v. L.A.L. Corp., 400 Mass. 737 (1987) ........ 9 Commonwealth v. Lauzier, 53 Mass. App. Ct. 626 (2002) .... 15 Commonwealth v. McDowell, 62 Mass, App. Ct. 15 (2004) . 15, 16 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 COMMONWEALTH, v. LIFE CARE CENTERS OF..., 2010 WL 3612917... Commonwealth v. McMaster, 21 Mass, App. Ct. 722 (Mass. 6 App. Ct. 1986) ....................................................................... Commonwealth v. Smith, 17 Mass. App, Ct. 918 (1983) ....... 16 Commonwealth v. Springfield Terminal Ry. Co., No. 13 MICR2008-00395 .................................................................. Commonwealth v. Twitchell, 416 Mass. 114 (1993) ............. 19 Commonwealth v. Welansky, 316 Mass. 383 (1944) ............. 11 First Equity Corp. of Florida v. Standard & Poor's Corp., 4 690 F. Supp. 256 (S.D.N.Y. 1988) ........................................ *iv Inland Freight Lines v. United States, 191 F.2d 313 1, 2 (10 th Cir. 1951) .................................................................... Lanzetta v. New Jersey, 306 U.S. 451 (1939) ....................... 17 Nabob Oil Co. v. United States, 190 F.2d 478 (10 th Cir. 2 1951) ...................................................................................... Rogers v. Tennessee, 532 U.S. 451 (2001) ........................... 19 Town of Marshfield v. City of Springfield, 337 Mass. 633 17 (1958) ..................................................................................... United States v. Sank of New England, 821 F.2d 844 (1st 11, 12, 19 Cir. 1987) .............................................................................. United States v. LBS Bank-New York, Inc., 757 F. Supp. 496 4 (E.D. Pa. 1990) ...................................................................... Jury Instructions MCLE Model Jury Instructions for Use In The District 9 Court, Section 4.180 (previously numbered 5.07) Corporate Criminal Responsibility (2009) ............................................. Other Authorities 2 Wayne R. LaFave, Substantive Criminal Law section 13.5 1 (b) at 387 (2 nd ed. 2003 & 2009 Supp.) .............................. *1 I. Proper Application of the Doctrine of Respondeat Superior to a Criminal Case Is Not in Dispute The Commonwealth spends most of its brief (“CW” pp. 4-31) arguing a proposition that is not in dispute, namely that in Massachusetts, the acts, conduct and intent of employees and agents, within the scope of employment, are imputable to their corporate employer under the principle of respondeat superior, even those which constitute a crime. See Commonwealth v. Beneficial Fin. Co., 360 Mass. 188 (1971). 1 The Commonwealth states: *2 “[T]he acts, knowledge and intent of each employee of a corporate defendant are imputed to his employer, as long as the employee worked within the scope of his employment regardless of whether all elements of a crime are satisfied as to him.” CW at p. 5. Life Care agrees. But this does nothing more than restate respondeat superior. It does not mean that non-criminal acts become crimes by a process of collection or “aggregation” where a corporate employer exists. 2 *3 The Commonwealth also asserts: “It follows that a corporate defendant must be seen as performing all acts performed by, knowing all information known by and intending all that is intended by its various employees within the scope of their employment.” 3 CW at p. 5. If this means that respondeat superior makes the employer responsible for the choices of each employee acting within the scope of employment, it again simply restates basics. It does not, however, mean that the existence of the corporate form somehow transmutes or transforms innocent or merely negligent acts, knowledge or intent into crimes. See Beneficial, 360 Mass. at 254-81. 4 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 COMMONWEALTH, v. LIFE CARE CENTERS OF..., 2010 WL 3612917... *4 The Commonwealth makes a fundamental legal and logical mistake when, as its “conclusion” alleged to follow from those “premises,” it asserts; “To the extent that that [aggregated but unconnected conduct, acts and intentions] adds up to the commission of a crime, the corporation is liable.” CW at p. 5. This is not the law of Massachusetts or any other jurisdiction. 5 Unrelated conduct, acts and intentions of *5 separate individuals, none of which constitutes a crime alone, do not become a crime when they are stirred together in a corporate pot. The new law the Commonwealth asks this Court to make is not the law of any jurisdiction nor should it be. The Commonwealth has not cited a single case or persuasive authority where a crime requiring intent or the intent substitutes of recklessness, wantonness, or willfulness, has been charged to a corporation based on uncoordinated, aggregated acts where no individual committed any crime. What the Commonwealth asks this Court to make criminal for the first time is conduct by one or more than one employee when that does not satisfy the elements of manslaughter or the abuse statute. CW at pp. 5-6. The Commonwealth urges this Court to hold that non-criminal knowledge, intent and conduct of any number of employees may be added together to create criminal intent which did not exist in any such employee, and a crime which was not committed by any employee. The Court should reject this request for such amorphous, indeed irrational criminal standards, and the corresponding unlimited and unchecked prosecutorial power inherent in them. *6 A. Beneficial Finance Holds that Only if the Commonwealth Proves Individual Employees Committed a Crime Can the Corporate Employer Be Liable The Commonwealth argues that its new corporate crime concocted by “aggregation” of non-crimes “follows naturally” from the landmark decision of Commonwealth v. Beneficial Financial Corporation, 360 Mass. 188 (1971). See CW at p. 8-9. The Commonwealth quotes fragments of sentences from Beneficial, which contort its meaning and holding. Beneficial does not support the Commonwealth's position either directly, or indirectly, by its reasoning. To the contrary, the Beneficial Court expressly holds that only where individual employees commit crimes can the corporation be liable. The relevant
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