02/20/2003 - Mountain Messenger
Letter to Editor - by Michael Miller
The Mountain Messenger Crackpot wrote on July 13, 1995, "We look forward to the annual Grand Jury report in the same spirit we hope our readers have anticipating our April first editions." He continues, "Grand Juries are pretty good at presenting one side of an issue. This watch dog organization, this monument to open government is cloaked in secrecy and operate behind closed doors. Free and open debate it ain't. Preserving open government through a secret society reminds us of a simile about the preservation of virginity."
People have asked, what were my emotions when Judge Young said, "Motion granted, dismissed," to the grand jury indictments induced by the California District Attorney Association.
Matter of fact, yes, it was my in pro per Motion to Set Aside that set us free from the vice grip of Gale Filter and Larry Brown and their Association.
Snarls? Smiles? No. The CDAA prosecutors had time to challenge the Motion, which they chose to laugh at instead and ridicule us miners as rural quasi-nitwits. They ignored its legality. There is no vindication nor is there vengeance.
Joy? Anger? No. The event is no longer a prison threat to our lives. But since no government or safety agency suggested any criminality, conviction was remote. Nevertheless once people are sucked into the system, it stays on their minds, in their thoughts.
Grateful happiness? No. Labeling me a killer of our friend and fellow miner, a derelict in the mining crowd, my peers, is history. But the accusations cannot be withdrawn from the minds of the widespread population coast-to-coast and north-to-south. The effects remain.
Humiliated with scandalous allegations? Yes. Scofflaw? That describes the CDAA and its employees. The threat of conviction in itself was damaging enough. As important is the collateral damage to my employer and the miners, people of Sierra County and the region. Also the economics and our cultural environment experienced irreparable damage. The CDAA carpetbaggers recorded willful malicious phrases during their performance before the Grand Jury.
But, guess what? A record of this judicial taking now exists in the court. All of this is preserved in grand jury and Superior Court records.
Because of the CDAA requested "gag" order, a backlog of important information for us in rural California now exists. Stay with us in educating your readers about our prosecution. Everyone in Sierra County and the state should be outraged (except perhaps half of the 180,000 lawyers registered with the California State Bar). Especially the twelve grand jurors.
02/21/2003 - Mountain Messenger
D.A. Drops Sixteen to One Manslaughter Charges
District Attorney Larry Allen stated emphatically he will not re-file charges stemming from the accidental death of miner Mark Fussell at Alleghany's Sixteen to One Mine. Fussell was killed rehabilitating a long-unused drift in November 2000.
"The standard for a trial is considerably higher than for an indictment," Allen noted. "In this sort of case, nine out of ten times [the prosecution] would get a hung jury or a 'not guilty' verdict. In light of this, facts with which I have become aware since taking office, and the considerable expense to the county, I have closed the book on this incident."
Allen said a recent underground tour of the mine's accident site made his understanding of the incident much clearer.
Last July, with the D.A.'s office being occupied by lame duck Sharon O'Sullivan, the California District Attorneys' Association (CDAA) filed manslaughter charges against mine CEO Mike Miller, mine foreman Jonathan Farrell and the Original Sixteen to One Mine Corporation.
CDAA declined an opportunity to place its case before a judge in a preliminary, arranging instead to have the grand jury indict.
Last Thursday, February 13, Judge Stanley Young granted a motion by Miller and Sixteen to One lawyer Thomas Crary and dismissed the grand jury indictment against the trio. Young agreed with the defendants that evidence of innocence was improperly withheld from the grand jury.
"The CDAA behaved unethically, lied to the grand jury, and caused damage that may prove permanent to the mine. They have undertaken a policy of 'rural cleansing,' attempting to destroy all facets of rural life," Miller said following the dismissal charges.
CDAA declined to speak to The Messenger. Neither Gale Filter nor Denise Mejlszenkier, two attorneys prosecuting the Sixteen to One case, nor Executive director Larry Brown returned our calls.
The mine, which has been suffering from deflated gold prices and from the lack of recent discovery of a particularly rich pocket, has found potential investors remarkably leery of putting money into a mine with management facing murder charges.
The Sixteen has historically been a "boom and bust" mine; it has fabulously rich pockets mixed with poor ore. To comply with state water regulations, some years ago the mine decided not to process the poor rock, but to aim for rich targets using heretofore unknown radar technology.
Miller has for some time, been researching civil action against CDAA prosecutors, who are well shielded from personal responsibility by the immunity given prosecutors and police. Nevertheless, that immunity does not hold if the complaint can prove malice.
Speaking on the courthouse steps following the dismissal, attorney Crary noted the CDAA prosecutors refused to tell the grand jury that a Cal-OSHA inspector had inspected the fatal site a week before the accident and seen no potential hazards.
“Public prosecutors have immunity. As to whether people can come in, get deputized, and then leave, there is almost no case law on that. But if they were malicious, there is no immunity.
“Were they malicious? They conducted themselves maliciously.”
The prosecution was begun by the second of two CDAA “circuit prosecutor” projects. The first is a relatively long-standing program available to rural county district attorneys who may not have the expertise or horsepower to prosecute Fish and Game and other environmental cases. When called by a district attorney, the CDAA sends a trained staff prosecutor to be deputized in the requesting county.
The second is a recent program, allied with the state Department of Labor Relations, which includes Cal-OSHA (California Occupational Safety and Health Administration.) According to the contract between CDAA and the Department of Labor Relations, trained prosecutors are similarly on tap for cases of criminal negligence in industrial deaths.
In the Sixteen to One case, however, CDAA over-rode Cal-OSHA officials who specifically eliminated criminal fault from the accident.
This fact, known to CDAA lawyers, was not relayed to the grand jury.
Furthermore, then-District Attorney Sharon O’Sullivan never asked for CDAA’s assistance. The circuit prosecutors brought the case to Sierra County already “investigated, prepared and ready for court.”
The CDAA in now 0-2 in making criminal cases from industrial accidents. A case involving a farm worker being killed in a combine was dismissed in the preliminary hearing. The Sixteen case, the association’s third, was likewise dismissed before trial. The second case, in Chico, is currently wending its way through the court system. A fourth case, also involving a farm death, was filed in Merced last week.
District Attorney Allen, a former CDAA environmental prosecutor does not believe the association is culpable, nor skirting the edges of ethics.
“Grand jury cases are tough. The prosecutor must act as both prosecutor and defender. When there are problems with these cases, it is usually from this conflict.” Said Allen.
Tom Crary, having once been a member of the CDAA, but never an employee, is not charitable.
"Since 1850, we've had a system with an executive department employed an Attorney General and District Attorneys. They were public employees, serving the public."
"Now we've inserted a private group into that process. I don't know if in the long haul this will prove beneficial, appropriate or necessary."
Crary notes the contract between the state agencies and CDAA also require the association to provide "experienced" prosecutors to the counties.
In the Sixteen case, one of the association's lawyers had only recently graduated from law school, prompting some to surmise the whole case was merely an exercise to provide her with courtroom experience.
"Then there are professional ethics that prohibit a private attorney looking to be retained in a specific case, especially for mere monetary gain."
Nor is Crary so sure the circuit prosecutors will enjoy the immunity of their publicly employed brethren.
"Look at it this way: if the sheriff goes and gets a posse, they've got a reasonable expectation of governmental immunity. But if the posse goes to the sheriff, we've got a different situation."
02/27/2003 - Mountain Messenger
From this Crackpot's Desk
A letter to Legislators
Gentlemen: As you seek to cut the budget, please consider giving rural counties one bit less help. You have funded, and are considering further funding, the California District Attorney’s Association to help rural counties.
Speaking from one county they’ve already helped, please spare us more.
The CDAA, by the contract made with you, is to assist local D.A.’s upon request, offering expert assistance in environmental and worker-safety cases.
Here, without such a request they brought in rookies to prosecute an absurd case over the objections of Cal-OSHA inspectors. They shopped their case to a lame duck, lied to our Grand Jury, misrepresented themselves as peace officers, alienated themselves from our courthouse assistants, refused to talk to the press, even now refusing to return calls from elected officials, and nearly bankrupted one of the county’s oldest businesses.
Fortunately, a judge bounced the case well before trial.
For the following reasons, you should save the state at least a couple hundred thousand dollars by cutting ties with CDAA:
CDAA is unethical: their mistreatment of the grand jury, despite specific requirements of the law, is beyond the pale. Misrepresenting oneself as a peace officer is elsewhere a crime.
CDAA is using the criminal justice system for financial gain, or political ends. Either they rushed this pathetic case to court in a bid for re-funding, or opted during the recent gubernatorial election to prove the administration “worker friendly.”
CDAA has no appreciation of rural custom, culture nor heritage.
CDAA is responsive to no one, refusing to talk to press or elected officials.
CDAA represents a dangerous concept: a private prosecutorial firm ultimately responsible to no one and evidently immune from consequences. Incumbent District Attorneys are unlikely to complain of an association that benefits them elsewhere.
04/11/2003 - Mountain Messenger
CDAA SUES SELF FOLLOWING ACCIDENT
SACRAMENTO - The California District Attorney's Association (CDAA) filed suit against itself in Sacramento Superior Court following an accident in the law firm's office.
CDAA became known locally when it lied to the grand jury in an attempt to press unwarranted murder charges against the Sixteen to One Mine's management following the accidental death of a miner. A judge dismissed the charges before the matter came to trial.
Ms. Rebecca Allen, a relatively recent CDAA employee, tripped on office carpet as she carried a sheaf of anti-war petitions from the office copy machine back to her cubicle. Ms. Allen suffered a badly twisted ankle and internal injuries. As a result of the fall, Doctors opined, she will never achieve her full growth.
Speaking for the CDAA, attorney Gale Filter explained his association was responding to internal pressure in filing the charges. District Attorneys from rural counties are holding the CDAA to a higher standard than previously sought.
"Yes, I know Ms. Allen was doing something forbidden at work: she was working her after hour peace-creeping avocation while on the job. But we regularly prosecute employers for accidents that happen to employees violating company policy."
Filter explained that things have recently changed in the Association, following the appointment of former CDAA Director Larry Brown to a post as Assistant U.S. Attorney in Sacramento.
"With the recent change in management, the CDAA discovered the concept of 'ethics' is supposed to apply to lawyers, too. You can imagine our surprise," Filter confided.
As a consequence, Filter continued, CDAA is trying to behave in a manner designed to cultivate respect from civilians.
"The Association's new line is 'what's good for the goose is good for the gander,'" he explained.
Filter paused, and looked up. "What's that mean anyway?"
Whining only slightly, Filter read from a prepared statement that in the future, CDAA would thoroughly investigate cases before rushing them to trial, but would hold themselves to a similar standard.
"Well, we really didn't have Cal-OSHA investigate Ms. Allen's accident," Filter admitted, "But we're confident that if they had, they'd fault us. I mean, after all, Ms. Allen isn't a lawyer, so probably isn't used to carpet that thick."
"And just like other cases we've prosecuted, we don't think it matters if the victim is a professional or not; if something bad happens, we're here to make sure something worse will, too," he concluded.
This front-page article is part of the annual April 1st edition of the newspaper. Congratulations Don Russell for your, intuition and writing skills.
04/17/2003 - Mountain Messenger
Miller, 16:1, File Multi-Million Dollar Claim Against County
Mike Miller, CEO of the Original Sixteen to One Mine in Alleghany, has filed multi-million dollar claims against Sierra County.
Miller is seeking redress for the California District Attorney’s Association (CDAA) recent attempt to press criminal charges on the mine and management following an accident which killed a miner
A judge dismissed the charges before the issue came to trial.
The California District Attorney’s Association is a private corporation which obtained the authorization of Sierra County’s then district attorney to press the charges.
Following vindication Miller began looking for damages, claiming $24 million in damages for the mine, and $50 million for damages to himself.
The acts of the county prompting the claim, Miller wrote, include but are not limited to: breach of duty, malicious prosecution, violation of criminal law, and violations of both the state and federal Constitutions.
At the conclusion of the criminal complaint against Miller and the mine, the Judge agreed that CDAA lawyers had not presented exculpatory evidence (that which shows a lack of guilt) to the Grand Jury as required by law.
The losses which Miller is trying to recoup include costs of defending the mine and management, loss of market capitalization, an inability to raise working capital during the criminal proceedings, loss of property, loss of income, physical and emotional damages.
Miller will, however, happily settle with the county for less: much less. As in, maybe, a dollar.
“This is my county, so in a sense, I’m suing myself,” Miller told The Messenger. “I’m not trying to bankrupt the county. This is simply a step in the process. I’m hoping the county will settle this claim for an extremely nominal figure, putting the county ‘out of the loop.”
Miller’s aim is centered directly on the CDAA, which he believes will not be protected by the indemnity given district attorneys.
“Yes, I want to recover the damages this organization caused me,” Miller concluded, “But every bit as important is to prevent the kind of malicious, mindless prosecution in which the CDAA seems to specialize. I want that group and those people to be accountable for ruining lives and business in their pursuit of “rural cleansing.”
The prosecution of the Sixteen to One mine was the second industrial accident the CDAA declared criminal, and the second to be thrown out of court before trial. That corporation currently has two more cases before state courts.
06/11/2003 - The Union
Gold mine president fighting citations
An Alleghany gold mine president continued his fight against U.S. Department of Labor citations Tuesday at a hearing in Nevada City.
Michael Miller, president of the Original Sixteen to One mine, said he is appealing citations that resulted in $32,000 in fines.
The mine was cited for two violations by the Mine Safety and Health Administration, a division of the Department of Labor, after the death of miner Mark Raymond Fussell.
Fussell, 36, was killed in the mine Nov. 6, 2000, when his head was pinned between the locomotive he was riding on and a low-hanging ore chute.
Tuesday's hearing before Administrative Law Judge Gary Melick was in Nevada City Hall. It is expected to resume today with Miller's witnesses.
Department of Labor attorneys called inspectors to testify about the locomotive Fussell was riding when he died. Investigators say the locomotive had an inoperable first gear, which made it accelerate faster.
One inspector said Miller told him he wouldn't allow a defective piece of equipment to operate.
Mine safety inspector Steve Cain said the mine had a hands-off policy that left it up to the miners to correct defects.
The miner had the authority to take the defective train out of service, Cain said.
If that had happened, Cain said, Fussell might still be alive.
Miller said during a break in the hearing that he didn't believe the locomotive was defective.
"We've got policies about defective things," Miller said.
02/19/2004 - Mountain Messenger
Sixteen to One, Miller Sue CA. District Attorney's Ass'n
DOWNIEVILLE-One day before the statute of limitations ran out, the Sixteen to One Mine, Inc., and its president, Mike Miller, filed a civil suit against the California District Attorneys Association (CDAA).
The suit, alleging malicious prosecution, was filed Friday the 13th, one year to the day Judge Stanley Young dismissed homicide charges against the mine.
The CDAA, a private corporation, contracted with California’s Department of Labor to be available to rural District Attorneys wanting to prosecute cases involving industrial injuries.
Miner Mark Fussell was killed in a November, 2002 accident while preparing an abandoned section of the mine for new work. Cal-Osha, the state Department of Labor’s safety inspection team, found no evidence of negligence on the part of the company.
Then District Attorney Sharon O’Sullivan showed no inclination to file charges, having received the Sheriff’s report which also deemed Fussell’s death an accident in a dangerous occupation.
Nevertheless, CDAA made its own investigation and convinced Ms. O’Sullivan to allow them to prosecute a murder case against Miller, the Sixteen to One and mine manager Jonathan Farrell.
CDAA then presented the case to the Grand Jury rather than following the usual procedure of a Preliminary Hearing, a ploy common to prosecutors seeking to avoid a judge’s oversight of the law.
Although ethically and legally, CDAA was required to present any information indicating the defendant’s innocence, the association’s lawyers did not.
Naturally, the Grand Jury returned an indictment in October, 2002.
There was speculation at the time the Association was in thrall to a politically threatened Governor, who desperately needed organized labor’s help to maintain his political life. Of CDAA’s four similar hastily assembled lawsuits, only one was settled in its favor. Two were rejected by judges before they even approached trial.
Ms. O’Sullivan was turned out of office in January, succeeded by former CDAA employee Larry Allen, who promptly reined in the corporate prosecution. Expressing early misgivings about the case, Allen refused Judge Young throw out the case because of the prosecution’s refusal to present exculpatory evidence to the Grand Jury.
Attorneys are somewhat skeptical of Miller’s chances of success, in the face of the virtual immunity prosecutors have against such suits.
Miller recognized the importance of the issue, but hopes to prove the “for profit” prosecutors do not share immunity with public employees.
So far, Miller notes, there is no case law on the subject, as California is the only state allowing contracted prosecutors.
“There’s one vaguely related case in Maryland that went our way,” says Miller. ‘But we really have to raise this issue. It’s beyond personal. It’s not only our losses, but who’s next? This is terrorism by a private firm using the power of the state.”
The suit does not specify damages, except to mention that more than $25,000 was sought.
04/01/2004 - Mountain Messenger
New Law Firm to Open in Alleghany
Alleghany- A unique new law firm is expected to open in this quaint mining town within the next few weeks.
The firm will specialize in mining and personal injury law.
The new firm, Marshall, Brandeis, Darrow and Miller, is expected to hang its shingle near the Underground Mining Museum building.
Mike Miller, whose name graces the firm, explains there will be no actual lawyers on site.
“Marshall, Brandeis and Darrow are all lawyers with wonderful reputations, but they’ve become unresponsive to public needs. There may be some truth to the rumor they’ve contracted with the California District Attorneys Association.”
“But I’m battin’ pretty near .900. I’m pretty sure I can outthink these partners, so they’re really so much window dressing.”
Clients are requested to leave a hefty deposit in small, unmarked bills at the Museum, with a note of the final filing date for any prospective action.
“Legal work is expensive and time-consuming. But I’ll get on it, er, that is to say I’ll have one of my partners get on it right away, unless they’ve got some issues with the mine to attend.”
Miller noted prospective clients should retain their optimism, but not to expect miracles. “Clarence Darrow never really won any cases, you know. Lots of times we’re absolutely right with truth, beauty and virtue on our side. The problem is with the damn judges and legislators.”
Miller is also contemplating running for Supreme Court Justice, state Assembly, state Senate, U.S. House of Representatives, U.S. Senate, Governor, President of the U.S., King of England and Secretary-General of the United Nations.
04/06/2004 - Mountain Messenger
Press Release From Alleghany's New Law Firm
We take this item from our sister paper, The Daily Denouncer and Prevaricator, out of Chipps Flat.
Your readers may be left with the April Fools impression of the new business front shown on the front page of last week’s paper. I have been asked about it too many times and realized that others were left in the dark by your brief article. Here is additional information. Regards,
The Fool on the Hill
The law firm is securely entrenched in Alleghany. There are no attorneys or lawyers working as this firm of law. The causes of interest to the firm were accurately reported in the April 1, 2004 Mountain Messenger. They involve mining law and personal injury law as reported. Darrow, Marshall, Brandies and Miller are partners, as reported. Mr. James T Brady, a noted advocate born in New York on April 9, 1815, is also of counsel. The firm has three cases in areas involving: criminal law, professional ethics law, safety law, administrative law both federal and state, constitutional law as well as mining and personal injury. Michael Miller has been a criminal defendant, accused of murdering a friend and fellow employee in a mining accident. He manages the corporation, which was also accused of murder. It is a harsh accusation for someone to receive; therefore those who make those accusations must be governed by codes of behavior and those codes must be enforced. Their accusations must be grounded in fact and law. He is a plaintiff in one case in Sierra County Superior Court and a Counsel in one case in the United States Court of Appeals for the Ninth Circuit. What does the title of Counsel mean? Is he now an officer of the court whereby he must abide by the California Codes of Conduct like lawyers and attorneys are required to do?
The title of “counsel” in law dates to the king who found his counsel as refractory as his judges and to Pope, in his Imit. Of Horace,II. I. 142:
This is my plea, on this I rest my cause-
What say my counsel, learned in the laws?
What is a counsel if not a lawyer or an attorney? He is an advocate engaged in the direction of the trial of a cause in court. Miller said, “ Ill counsel misled the court and its layers of judges. Damages approach $100 million to all plaintiffs. I could be reticent no longer. Not to disclose the clear disregard by the accusers could not be swept aside. Their arrogance and disdain for the judicial branch of our three-tiered government, if unchecked, will bring down our country.”
05/13/2004 - Mountain Messenger
16 : 1 Begins Move Against CDAA
The Sixteen to One mine naturally suffered while the California District Attorney’s Association tried to make a murder case against its CEO, and its mine manager, following the accidental death of a miner opening a new heading.
The California District Attorneys Association, a private corporation, had contracted with the state to offer special experts to help rural District Attorneys prosecute worker safety violations. Its first attempt was laughed out of court during a preliminary hearing in Yolo County.
CDAA then came to Sierra County, requesting then-District Attorney Sharon O’Sullivan to let them prosecute a “slam-dunk” case against the Sixteen.
Rather than risk another preliminary hearing, CDAA opted to use the Grand Jury to obtain an indictment. That proceeding requires a prosecutor to present any exculpatory evidence, i.e. evidence of the defendant’s innocence.
CDAA opted not to present such evidence, the Grand Jury indicted, and the matter was set for trial.
Justice finally overcame the CDAA;s blatantly political prosecution, but significant damage had been done. And the sensibilities of Sixteen to One President and CEO Mike Miller had been offended.
As reported in the newspaper, the CDAA appeared to be working for the re-election of then-Governor Gray Davis, placating unions and giving the impression the state-funded private corporation was actually concerned about worker safety.
The case was eventually dismissed by newly elected D.A. Larry Allen with the strong concurrence of the judge.*see note
Miller vowed to bring the legal corporation to an accounting, a process so far ignored by the state government. So he sued the corporation and several of its lawyers in civil court.
CDAA, in a demurrer filed with the court, promptly insisted its attorneys are shielded as District Attorneys, who have an incredible immunity from legal transgressions. Its attorneys claimed to have been deputy Sierra County District Attorneys.
In paperwork filed in Superior Court on Monday, Sixteen to One lawyers did not enjoy such immunity, because they had never been lawfully appointed deputy D.A.s.
The law requires deputy D.A.s to take an oath and file “a written appointment by the deputy’s principal…with the county clerk.”
Included in the paperwork filed Monday is a declaration by County Clerk Mary Jungi that no such paperwork has been filed in the past five years.
Therefore, suggests Miller, there have been no deputy district attorneys appointed and thus neither the law firm, nor its lawyers enjoy the immunity sought.
Meanwhile, a Los Angeles Deputy Sheriff reports his inability to serve Miller’s papers on one of the CDAA’s attorneys, one Anthony Patchett. In three attempts, when evidence indicated Patchett was home, he was unable to obtain a response. “Defendant may be evading,” the officer noted.
“You know, that’s a pretty damning charge against an officer of the court,” Sixteen Attorney Gilmore mused.
*Note by Sixteen to One Staff: Judge Stanley Young granted the motion to set aside filed by Michael Miller. Newly elected D.A. Larry Allan did not object to Judge Young's ruling.
06/03/2004 - Mountain Messenger
Sixteen to One vs. CDAA Lawsuit Stays Alive
Downieville-How, asked the speaker at a placer-Sierra Bank business seminar, does a small business define success?
“We’re still here, aren’t we?” is that measure of success to owners of small concerns, he explained.
To that extent, the lawsuit against the California District Attorneys Association by the Sixteen to One Mine, and its President Mike Miller, is a success. The Sixteen’s claim withstood the first round of defense by the CDAA and the suit will continue.
Miller and the Sixteen are challenging the state’s novel experiment with “for hire” prosecutors, having been Judge Stanley Young threw the case out of court.
The entire case was of dubious merit; casting an accidental mine fatality as a criminal matter. Investigators previous to the entry of CDAA had determined the death a mishap.
The recourse until recently has been political: throw the rascal District Attorney out at the next election. Unfortunately, there is no such recourse in Miller’s case: the D.A. had already been voted out when the CDAA approached the lame duck to press its case, which was particularly politically popular with the ill-fated Gov. Gray Davis camp. Davis desperately needed organized labor’s support.
Miller is suing the association and its lawyers, personally, citing several breaches of ethics, legality and technicality, for damages caused to the company, Miller and the reputation of both for a yet-undisclosed sum of money.
CDAA responded by filing a demurrer, claiming they are suit-proof because they were deputy district attorneys and thus entitled the immunity granted those worthies.
Miller and Sixteen lawyer George Gilmour begged to differ. There are two things a lawyer must do to become a deputy district attorney. The first is to be sworn in, which the CDAA lawyers were. The second is to record the deed with the county Clerk-Recorder. This they didn’t do. Therefore, the plaintiffs claim, the attorneys are not due the shield of the state.
No worries, replied the CDAA. If they weren’t district attorneys as a matter of law (de jure), they were as a matter of fact (de facto) and still covered. And this, CDAA held, should be the end of the matter.
Maybe, maybe not, concluded the judge at a hearing last Friday, May 28.
Gilmour cited one case, evidently the only in the history of California jurisprudence addressing the issue, which specifically states that a de facto official does not enjoy the automatic immunity.
The judge denied the demurrer on the grounds of immunity, but granted another on the grounds the Sixteen and Miller had not specified damage suffered nor remuneration sought. The judge left both the option of amending their complaints.
Miller and company are busy on just that project, which is bound to raise several issues never before addressed in law. The concept of corporate prosecution is relatively new, and little case law has been established. Miller hopes at least his suit will stop prosecutions by private corporations who bear, to date, no responsibility nor accountability any citizenry.
08/07/2004 - Mountain Messenger
Miller, Sixteen to One File Amended CDAA Lawsuit
When last we visited this process, the California District Attorneys Association had just heard a judge explain the Association’s lawyers weren’t automatically immune from lawsuits.
The judge then gave Mike miller and the Sixteen to One Mine time to re-file their lawsuit with more specifics.
Miller, representing himself, joined attorney George Gilmour who represented the Sixteen to One corporation, in suing CDAA lawyers for damages arising from since-dismissed murder charges against Miller. Those charges stemmed from an accident in the mine which killed miner Mark Fussell.
The CDAA had been contracted by a state agency to assist rural district attorneys in prosecuting industrial malfeasance resulting in worker injury or death. Their contract with the state requires them to be available, not to shop cases around.
Nevertheless, CDAA brought the Miller/Sixteen case to then D.A. O’Sullivan, at the time a lame duck. Investigation by local authorities had concluded the incident was an accident, and O’Sullivan showed no inclination to file criminal charges.
Asked at the time about the case, O’Sullivan told this paper “I don’t know anything about it. You’ll have to talk to (CDAA attorneys).
CDAA’s first attempt in an agricultural case was laughed out of court. Eventually, Judge Stanley Young threw their second, against the Sixteen to One, out as well.
Last Thursday, July 29, Miller’s civil suit was re-filed in Sierra County Superior Court.
In the new filing, CDAA attorneys are accused of malicious prosecution, intentional interference with a business, and intentional infliction of emotional distress.
Miller’s contention, borne in both the first and the latest lawsuits, is that CDAA attorneys are not covered by the immunity given district attorneys as they, essentially, lied to obtain the appearance of officialdom.
While the purported “deputies” were sworn in by a court official, they did not register as required with the County Clerk.
They were not duly appointed deputy district attorney, Miller insists, but mis-represented themselves as officials while intentionally withholding information from the Grand Jury, information which a district attorney has a legal obligation t present. That Grand Jury brought the indictment, allowing the prosecutors to avoid facing a judge’s question in a preliminary hearing.
The second count accuses the CDAA of knowingly interfering with a business, the Sixteen to One, for benefit of themselves. That profit is specified as the ‘benefits and notoriety that would flow to the CDAA if the viability of the Sixteen to One were undermined’ and ‘to acquire a reputation as a purported protector and “cleansor” of the environment in rural counties.
CDAA enjoys a significant contribution to the organization from its heretofore successful “environmental prosecution” program. That program, also contracted by the state, is available at the request of small rural county prosecutors, who may not have the expertise nor time to pursue cases involving environmental damage.
Coincidentally, District Attorney Larry Allen was employed as a CDAA environmental prosecutor at the time the Association began its prosecution of Miller. Allen had no part in that process, except to agree with the dismissal of the case after he’d been sworn in.
Miller and the company are seeking in excess of $50,000 for the emotional distress caused by the failed prosecution. In addition, Miller seeks to prevent any further prosecution by corporation with little, if any accountability to the citizenry.
09/30/2004 - Mountain Messenger
Sixteen, Miller Carry On Fight Against CDAA
DOWNIEVILLE – Next Tuesday, October 5, will see the next courtroom chapter of the Sixteen to One and Mike Miller versus the California District Attorneys Association and several of their lawyers.
Miller and the Sixteen to One mine are suing the outfit, and lawyers Gale Filter, Denise Mejlszenkier, Anthony Patchett and Kyle Hedum for malicious prosecution, intentional interference with a business and intentional infliction of emotional distress. The case is in response to the CDAA’s prosecution of Miller and the mine following the accidental death of a miner.
CDAA has been hired by the state’s Labor Department to offer its prosecutorial expertise when called upon by rural District Attorneys. While the quality of the expertise remains a moot point (see related story) the concept of private corporate prosecution is somewhat new.
Although a county district attorney is supposed to request CDAA’s services, in the case against the mine, the corporation brought the case already investigated and prepared to then Sierra County District Attorney Sharon O’Sullivan. At that point, no investigation, by state nor local officials, suggested miner Mark Fussell’s death was anything but an accident.
Among other charges, the suit against CDAA alleges the corporation’s lawyers were not, legally, assistant district attorneys. Those worthies had neglected to register with the County Clerk as required by law.
CDAA earlier tried to get the case dismissed, claiming its attorneys are protected by the umbrella given district attorneys. The judge declined to rule on that issue, and allowed Miller and the mine to refile its claim because of other deficiencies.
On September 7, Miller and the mine refiled their case. Once again, the CDAA insists its attorneys are protected, and filed a demurrer, requesting the judge to disqualify the case.
George Gilmour, attorney for the mine, earlier presented case law that said a de facto (acting as) official is not protected, while a de jure (legal) official is.
CDAA’s lawyer has brought no new arguments to the table. Unless the judge rules on the issue of the corporate lawyers’ immunity, we presume his previous stand will prevail, and the case will progress.
09/30/2004 - Mountain Messenger
State Privatization of Prosecution Looms Costly
MODESTO – The California District Attorneys Association, the private corporation which some state agencies have hired as their personal prosecutors is now batting a dismal .250.
Before lawyers began wholesale failure of their ethics exams, a District Attorney was extremely mindful of the cases he took before the bar. A citizen’s liberty, back then, was not something with which to trifle. Only cases of which the prosecution was very sure went to trial.
Since legal practitioners’ ethics have become a thing of the past, lawyers such as CDAA’s Gale Filter, the attorney in charge of the private prosecution, have used District Attorneys’ offices for political purposes and to apply pressure on the legislature and regulatory agencies.
The citizenry’s only relief comes from the evidence that CDAA is not very good at what it purports to do. In the four cases CDAA has tried for the Department of Labor, only one resulted in a conviction.
The first, involving a farm worker killed in a harvesting machine accident, was dismissed during the preliminary hearing.
The prosecution has every advantage in a preliminary hearing, which more than one judge describes as a “laugh test.” CDAA’s attempted prosecution of the farmer failed that first test.
The second case involved murder charges against Alleghany’s Sixteen to One Mine, its CEO, and its mine foreman. Having failed at a preliminary hearing, CDAA chose to take its case to Sierra County’s Grand Jury.
Because CDAA failed its requirement to present evidence indicative of the accused’s innocence, that case was kicked out of court as well.
The owner of an electrical company plead out the third case before it came to trial.
The most recent case, in Modesto, was brought after two farm workers were suffocated in a liquid manure pit. Last week, a jury found the farm owner not guilty, but had harsh words for the laxity of the state agency which hired CDAA.
Attempting to explain away the case, Merced County District Attorney Gordon Spencer, in whose name the prosecuting company proceeded, said the criminal charges had “sent a message” to the dairy industry.
Just what that message is, and why the no-doubt upright barrister opted to jeopardize an innocent citizen to send it, remains unclear.
10/07/2004 - Mountain Messenger
Sixteen to One: 2, CDAA: 0
DOWNIEVILLE – The prosecutorial cowboys of the California District Attorneys Association might be starting to worry about just how many cause-for-action Indians are left in the judicial hills of Sierra County.
The Sixteen to One Mine, and its President, Mike Miller, are suing the CDAA on four counts of malfeasance.
The CDAA obviously expected the case to collapse upon its declaration of prosecutorial immunity.
Unfortunately for CDAA, the legitimacy of its earlier prosecution of Miller and the mine is exactly the point of the lawsuit: Miller and the Sixteen insist the CDAA, a private corporation, usurped prosecutorial power, unlawfully presented its lawyers as public officials, and maliciously prosecuted for personal or political gain.
This week, for the second time, a judge was unimpressed with CDAA’s mere insistence on immunity, and refused to throw the case out of court, paving the way toward a trial.
Miller, acting as his own lawyer, and the Sixteen’s lawyer George Gilmour, were granted permission to file an amended complaint; to clarify some of the language in the previous document, and to declare in writing further facts related to the mechanics of the lawsuit.
This third chapter in the lawsuit is expected to be filed within 60 days. CDAA, having twice lost one objection to the suit, is presumed to attempt a different strategy in trying to avoid answering the charges.
04/19/2005 - Los Angeles Times
Outside Prosecutors Feel Urban-Rural Rift; A circuit-riding team going after employers in hazardous fields gets little local support.
The goal was to crack down hard on what appeared -- in the most egregious cases -- like a callous acceptance of death on the job in rural California.
The Sacramento-based California District Attorneys Assn. dispatched circuit-riding prosecutors to remote counties to help bring felony cases against employers whose "willful negligence" had killed or maimed workers.
But accusing respected businessmen in rooted and inherently dangerous rural industries of manslaughter has proved tough. Four years after the effort began, several of the cases have fizzled before judgment or ended in acquittal, underscoring deep cultural rifts that divide urban and rural California.
Now, one of the targets is striking back: Michael Meister Miller, 62, chief executive of Sierra County's Original Sixteen to One gold mine, is taking the prosecuting attorneys to court. Miller and his former mine manager, Jonathan Farrell, 34, were indicted on felony manslaughter charges in 2002 after a worker crushed his head on an unmarked low-hanging ore chute. But after Miller argued that exculpatory evidence was withheld from a grand jury, a Sierra County Superior Court judge tossed the case with little comment.
Miller and his company are now alleging malicious prosecution, intentional interference with the mine -- in operation for more than a century -- and infliction of emotional distress. Prosecutors are generally protected from suits that pertain to their actions on the job. But a technical slip has kept the claims alive, for now: Although Sierra County's then-district attorney orally appointed the visiting prosecutors as deputy district attorneys and filed records of their oaths with the court, written appointments were not filed with the county clerk as required by law.
That has given Miller a chance to vent his rage. It has also offered a glimpse at the uphill battle the prosecutors face in rural areas as they seek to apply a new law and bring blue-collar bosses to justice for accidents that often occurred outside the bosses' presence. State law allows for such felony cases. But support from juries and even judges in places where men have long made a living on the land has been thin at best.
"We're talking about areas where the fit between the cultural values of rural communities and the administrative state is neither comfortable nor acknowledged," said UC Berkeley criminal law professor Franklin Zimring. "California isn't a state; it's a country with very different regions.... We have our own Appalachia. This is a marvelous illustration of that. "To Miller, the circuit riders are "carpetbaggers" on a "rural cleansing" campaign who had no place plying their trade in his tiny mountain county. "They painted a picture of a careless irresponsible guy running a loose, leaky ship and not caring for his employees. That's just not the case," he said. "There's a duty to a private citizen like me to not have a hanging party.
"Miller faults the miner, Mark Fussell, for his own death. His duties were to prepare an inactive tunnel 1,700 feet below ground for mining -- and that meant sawing off or marking overhanging chutes. Distracted by personal problems, Miller said, Fussell backed his battery-operated locomotive into the chute and paid the price. Neither Miller nor Farrell was present.
The lawsuit, filed last year by Miller and the company, alleges that prosecutors were never entitled to work in Sierra County, withheld evidence that would have cleared Miller and Farrell, caused the publicly traded company's stock to plummet, and destroyed Miller's reputation in the community.
Miller also says the criminal case was based largely on federal citations that he was still contesting.
"He's been stigmatized as an irresponsible screwball," said George Gilmour, the attorney representing the company; Miller is representing himself. "It's just his life, his reputation, his sense of self [at stake]. He's looking for some absolution here.
"Circuit prosecutor supervisor Gale Filter, who is named in the suit along with the California District Attorneys Assn. and three other attorneys, declined to comment. So did Thomas Knox, the lawyer representing them.
But in court filings, Knox said the prosecutors were clearly operating under the authority of then-Sierra County Dist. Atty. Sharon O'Sullivan and were entitled to immunity, even if some paperwork was not properly filed. O'Sullivan -- who no longer practices law -- swore the deputy district attorneys in, offered them office space, and was named in all filings and correspondence as the supervising attorney. The California District Attorneys Assn.'s worker safety program was launched in 2001, under contract with the state Department of Industrial Relations, which reviews workplace deaths and serious injuries. The goal is to provide specialized prosecutors at the request of rural district attorneys whose resources and expertise in labor law are thin.
The team was modeled on a crew that helped rural counties successfully prosecute hundreds of environmental crimes. The prosecutors relied on a 2000 state law that elevated to felony status workplace negligence formerly punished with administrative citations or misdemeanors.
Miller's case was one of just a handful that had been filed in rural counties under the law. The hard-rock gold mine near the central Sierra Nevada town of Alleghany got its start in 1896 and once produced some of the state's densest gold concentrations. But yields in its 27 miles of dank tunnels dropped as the industry declined and hard times withered the mine's once-bustling workforce.
Miller has had a history of run-ins with state and federal regulators, who had cited the mine more than 180 times in the decade before the accident for faulty escape routes, broken ladders, improper storage of explosives and more.
Shortly before Fussell's death, federal regulators cited the mine for not marking a similar low-hanging chute, later giving prosecutors the evidence they felt they needed to prove a "willful" violation.
Miller and Farrell reacted with hostility to the citation, saying miners knew where the chutes were and ducked to avoid them, federal Mining Safety and Health Administration Inspector James Weisbeck told grand jurors. "It was very confrontational," Weisbeck testified. "It was a tough, hard thing to deal with their frustration, their anger, to get them ... to do something. "The accident occurred three months after the federal citation was issued. Miller and Farrell were indicted.
Then, in early 2003, a Sierra County Superior Court judge dismissed the case. Apparently working in Miller's favor: Grand jurors had not been informed that a state inspector had visited the accident location shortly before it occurred and did not note any hazards.
Sierra County residents reacted with relief. At the Rotary Club and in the streets, people called the prosecution "a waste of time and money," said current Dist. Atty. Larry Allen, who declined to refile the case against Miller.
"This is a resource-based economy, or was -- and mining and logging are inherently dangerous professions," he said. "People thought, 'We're going to be next.' "It was not an isolated defeat.
The team's first case, against a Yolo County farmer, never made it through a preliminary hearing, at which a judge determined there was no evidence of criminal negligence. Last fall, a Merced County dairy owner was acquitted by a jury of all charges in a case that left two workers dead after they were overcome by hydrogen sulfide fumes and drowned in a manure pit.
That defeat prompted Merced County Dist. Atty. Gordon Spencer to decline to file charges in a similar death.
Filter, who heads the circuit prosecutor program, points to some successes: A Butte County business owner pleaded guilty and received a year's jail sentence in connection with a gas tank explosion that left a worker badly injured. The foreman in the manure pit case also pleaded guilty in exchange for three years' probation.
"In the grand scheme of things, this is new law," said Filter, who notes that the prosecutions have raised awareness about hazardous work conditions in rural counties. "I believe we're on the right track.
"But even the guilty plea by the dairy foreman would later be eroded by a sympathetic judge: Following the owner's acquittal, the judge cut the foreman's probation in half, calling him a "good man" who "acted reasonably," the Modesto Bee reported. His felony conviction will be reduced to a misdemeanor if he completes probation.
Zimring said prosecutors could be setting themselves up for failure by pursuing felonies without giving jurors a chance to convict on lesser misdemeanors. That's problematic as prosecutors file charges against well-respected community members who weren't at the scene of deaths or injuries, he said. "I think it was Justice [Oliver Wendell] Holmes who said even a dog can tell the difference between an accidental and intentional kick,"
Zimring said. "You have the attempt to elevate negligence to a felony, and that goes against citizen instincts. The law says you can. But the communal instincts are such that without any intention to do wrong or to risk death, there are inhibitions.
09/21/2005 - The Union
Mine loses legal advocate in car crash
Maverick gold miner Mike Miller said Tuesday he will find a way to continue to legally protect his Original Sixteen to One Mine despite the recent death of his close friend and lawyer, George Gilmour.
Gilmour, of Richmond, had been the legal brains behind the Alleghany mine's defense against criminal manslaughter charges filed after the accidental death of a miner in 2000. After the charges against Miller and a mine manager were dropped, Gilmour led the lawsuit against the California District Attorney's Association. The suit accuses the association of "malicious, questionable and unlawful activities" and seeks $25 million in damages.
On Sept. 12th, three days before they were to meet in a Downieville courtroom to deal with motions related to the second lawsuit, Gilmour died in a single-car accident in Sierra County. He was 64.
With the reality of Gilmour's death sinking in, Miller said the loss "is greater than one would imagine. ... It's more than just a relationship between a company and its attorney."
Gilmour shared Miller's philosophies about the role of law in society and the limitations of government, Miller said. When Miller fought the manslaughter case, Gilmour saw deeper principles at stake that the two men agreed upon, he said.
Miller said Gilmour was from San Francisco and had studied to enter the Society of Jesuits at a Santa Cruz Mountains monastery. After a painful experience in Mississippi that taught him the brutality of racial injustice, Gilmour finished a degree at the University of San Francisco and studied law at the University of California, Berkeley.
On the day he died, Gilmour had met with Miller in Alleghany to discuss their lawsuit and the court hearing scheduled for Thursday.
Gilmour left, perhaps to pick up something to eat in North San Juan, MIller said. At 7:30 p.m., while driving on Sierra County's Ridge Road, Gilmour struck a 10-inch cedar. He died at the scene.
The next court date has been postponed to Oct. 19, Miller said.
Gilmour also was helping Miller fight two citations and $32,000 in fines levied by the Mine Safety and Health Administration after the miner's death.
When asked how he would go with his legal battles, Miller said Gilmour's words and philosophy will be with him.
"It's a tremendous loss," Miller said. "I look to carry this forward regardless of whether he's here or not, because he's still here."
Gilmour's remains will be cremated at Hooper and Weaver Mortuary in Nevada City, then will be taken Oct. 3 to his father's grave in Colma, south of San Francisco.
12/15/2005 - Mountain Messenger
Sixteen to One Wins Another Round in Fight Against DA’s Association
DOWNIEVILLE-The California District Attorneys Association, a corporation of self-professed legal experts, is showing no more competence defending itself than it has shown prosecuting alleged industrial “crimes” that result in workers’ deaths. This month, the Sixteen to One Mine and its CEO Mike Miller, passed a major hurdle to further its civil damage lawsuit against the organization.
“December 1 was a very good day for us,” Miller said. “We’ve passed a milestone in a case where few people gave us a chance of prevailing, and CAL-OSHA (California Occupational Safety and Health Administration) finally vindicated us.”
Miller, personally, and the Sixteen to One corporation are suing the CDAA for malicious prosecution and intentionally wrecking, for its own gain, the reputation of the mine. CDAA charged the mine, Miller and the mine’s foreman with criminal homicide, a case eventually dismissed.
Some years ago CDAA received a no-bid contract from the state department of Labor to offer “expertise” to rural district attorneys in prosecuting industrial crimes. To date, CDAA has lost three such cases, and settled one.
The reader may recall the CDAA jumped into local headlines when it began prosecution of the mine, its CEO and mine foreman following a tragic, fatal accident at the Sixteen. In November 2002, Mark Fussell was killed while working to reopen a closed section of the mine.
CDAA shopped the case to then-lame duck D.A. Sharon O’Sullivan, who showed no interest in the accident before, during or after the CDAA’s appearance. While its operatives did take an oath of office, they never fulfilled the second requirement of filing a written appointment, signed by the elected district attorney, with the county clerk.
CDAA short-circuited the usual process of investigating such an accident, bringing in its own “investigator” while the professionals were still pondering the situation. Since then, Cal-Osha has settled the matter, agreeing there is no significant evidence that conditions in the mine contributed to the fatality.
This paper has suggested that CDAA’s motives were political: it had a contract with the executive branch of state government which, with Gray Davis as a symbol, was very much under attack and desperate for support from organized labor.
Another motive suggested is a resentment that a former CDAA associate had bested then D.A. O’Sullivan in an election, prompting the latter to ignore the deficiencies of the prosecution as an act of revenge. That analysis presumes O’Sullivan would understand the case would collapse and the wreckage fall on the corporation or her successor D.A.
However, the motive for the prosecuting corporation’s appearance in Sierra County is not an issue: the simple malice of their handling of the case is.
Prosecuting the Sixteen, CDAA’s attorneys chose not to risk a preliminary hearing where both sides of a case are present. Instead, they opted to use a grand jury process, much more easily manipulated as the panel only hears the prosecution’s evidence. However, prosecutors are legally and ethically required to present any evidence of innocence of which they are aware.
CDAA was demonstrably lax in this requirement; which is the gist of the Sixteen’s case against the corporation.
CDAA’s defense attorney has been a johnny-one-note, insisting the corporate attorneys were, or at least functioned as, deputy district attorneys and as such have immunity from charges of misconduct.
Furthermore, CDAA suggested, that in suing the corporation Miller and the Sixteen were interfering with a freedom of speech, claiming the mine’s action was a SLAPP (Strategic Lawsuit Against Public Participation).
On December 1, Judge Stanley Young opined otherwise, refusing to dismiss the lawsuit.
Young had earlier declined to recuse himself from the case, or move the case to another county.
In response to the anti-SLAPP motion, Young noted the petitioner must show their act as within the scope of things constitutionally protected. In this case, he found, the acts of CDAA were outside the law.
Young dismissed CDAA’s claim of immunity, noting the attorneys had not filed the written appointment, making their actions “illegal as a matter of law.”
In any event, Young wrote, the evidence provided by the plaintiffs is sufficient to take the issue to trial. “It is not the law that individuals who are not properly appointed may act as officers and then claim immunities for illegal acts or conduct,” Young concluded.
CDAA Executive Director David LaBahn explained the organization has received a letter from its defense counsel, but was unsure of the corporation’s next step.
“We’d have to describe the judge’s ruling as a ‘disappointing result,’” allowed LaBahn.
“I’m not sure what the next step will be, but we’re looking at the broader scope and what the ramifications are for district attorneys.”
“At this point, we’re exploring all options.”
From conversations with LaBahn and the area district attorneys, the process of appointing deputy D.A.s in writing, and filing those appointments with county clerks has been less than a top priority for the counties’ top law officers around the state.
04/13/2006 - Mountain Messenger
Sixteen to One Exonerated from Federal Accusations
SAN FRANCISCO – On March 30, a three judge panel of the federal Court of Appeals set aside charges against the Sixteen to One mine resulting from the death of miner Mark Fussell, and forbade the federal agency from taking any further action on the charges.
Fussell was killed in an accident on November 6, 2000 while preparing a section of old workings for new exploration.
The accident began the remarkable prosecution of the mine by a private law firm made up of the state’s district attorneys, the California District Attorneys Association (CDAA). A state judge has since ruled that prosecution illegal.
The federal charges took the form of administrative citations by the federal Mine Safety and Health Administration, which claimed the mine was responsible for the death because Fussell was a mine manager. A second citation held that the equipment was operating faulty.
In the recent ruling, the appeals court dismissed the charges, citing a lack of evidence for MSHA’s conclusions.
The Sixteen to One had brought testimony that Fussell was a rank-and-file miner, not part of management, and that the equipment had been wrecked in the accident that killed Fussell.
Earlier, an MSHA hearing officer accepted MSHA’s claim, found the mine guilty, and assessed a $19,650 fine.
The Sixteen then appealed that assessment to MSHA’s appeals commission and requested more time to complete its argument, given the volume of testimony produced by the agency. The commission rejected the mine’s request.
The San Francisco appeals court judges immediately dismissed MSHA’s insistence they had no jurisdiction in the question. The appeals court then criticized the commission’s refusal to grant the extension of time, writing that that decision was a “misstatement of law.”
In the oral proceedings the judges were considerably less charitable, pointing out that the Secretary of Labor was contradicting himself. “You said it (the extension) can be granted, and that the law prevents it. You can’t have it both ways.”
The appeals court found “two troubling procedural issues…” in the MSHA hearings, including the refusal to hear the appeal. A second procedural error involved the hearing officer’s misleading Miller during the first, administrative appeal.
Those issues were moot, however, explained the court, “because we conclude that the Operator’s petition should be granted on the ground that there is no substantial evidence supporting the ALJ’s (the hearing officer, an Administrative Law Judge’s) finding…”
Fussell, concluded the court, was a rank-and-file miner, not part of the management whose conduct would be the responsibility of the mine.
“In view of our holding and the factors cited in the ALJ’s decision with respect to the assessment of penalties, the imposition of further penalties for the conduct described… would be arbitrary and capricious. Accordingly, no further penalties shall be imposed with respect to those two alleged violations,” concluded the court.
The ruling from the appeals court kicks the last prop from the California District Attorney’s Association’s usurped case.
CDAA came into Sierra County claiming appointment by the then-district attorney, and began prosecuting the Sixteen to One, CEO Mike Miller, and mine manager Jonathan Farrell on murder charges.
Essentially short-circuiting established procedures for investigating and prosecuting industrial accidents, the CDAA presented its supposed case to a grand jury instead of risking a pre-trial hearing before a judge.
After taking office newly anointed District Attorney Larry Allen threw the case out of court, believing then there was no evidence to support the accusations.
Miller and the Sixteen are presently suing CDAA for the harm done the mine’s reputations under color of law.
A judge has ruled CDAA is not entitled to the immunity granted district attorneys, as CDAA was not legally entitled to prosecute in Sierra County.
That civil suit continues to wind its way through the court system.
05/05/2006 - ICMJ’s Prospecting and Mining Journal
Original Sixteen to One cleared
Volume 75, Number 9
LEGISLATIVE AND REGULATORY UPDATE
A three-judge panel from the 9th Circuit Court of Appeals vacated penalties against the Original Sixteen to One Mine that were part of a lower court decision following the death of miner Mark Fussell in November 2000. The panel also prohibited the Mine Safety and Health Association (MSHA) from taking any further action on the charges.
MSHA had issued citations to the company after the accident claiming the company was responsible for the death because Fussell was part of management, and the equipment he had been using was faulty.
An MSHA hearing officer sided with the agency, disregarding company claims that Fussell was a rank-and-file miner and that the equipment was damaged due to the accident.
During an appeal through an MSHA commission, the company requested more time to adequately address evidence and testimony presented by the government. The MSHA commission denied the request.
The 9th Circuit judges criticized MSHA for failing to grant the extra time to the company. The panel also stated there was “no substantial evidence” to warrant charges.
08/30/2006 - Rocklaw
Secret Agent Man
Negligent actions of an operator’s agent may be held against the perator. Marci Fulton is an associate with Patton Boggs LLP’s Denver office. She
counsels clients on matters involving securities and corporate transactional law-related matters, administrative and regulatory issues, and civil litigation. Fulton may be reached via phone at 303-894-6121 or via e-mail at email@example.com.
Given the implications of an employee’s status, it’s important to determine which miners are likely to be considered as agents.
Considering which miners are agents under the Mine Act may not be as exciting as watching a James Bond flick, but this determination can have some very real consequences for operators. Thanks to a recent Ninth Circuit decision, the determination may have just gotten a little easier.
Negligent actions of an operator’s agent, actions arguably outside of the operator’s control, may be held against the operator in the assessment of civil penalties and the determination of unwarrantable failure. No matter how good the operator’s training programs, safety measures, or intentions, the negligence of an agent can drastically affect a citation’s outcome. On the other hand, the negligence of a “rank-and-file” miner is generally not imputable to operators. An operator should know who its agents are.
Section 3(e) of the Mine Act defines an agent as “any person charged with responsibility for the operation of all or a part of a coal or other mine or the supervision of the miners in a coal or other mine.” Not surprisingly, this definition provides little guidance in determining whether a miner is an agent of the operator.
The determination requires a case-by-case analysis, but guidance has emerged from case law. A miner’s function, not his job title, is scrutinized. If a miner’s responsibilities include tasks typically assigned to management, the miner is likely an agent of the operator. Similarly, if the miner’s responsibilities are crucial to the operation of the mine, he may be the operator’s agent.
Many decisions by the Commission have pondered the question of miner as agent, (e.g., Martin Marietta Aggregates,22 FMSHRC 633 (2000), but the question rarely makes it beyond the Commission level.
In a recent unpublished decision, the U.S. Court of Appeals for the Ninth Circuit vacated fines imposed for two citations against the Original Sixteen to One Mine Inc., a high-grade gold mine in Alleghany, Calif. (Original Sixteen to One Mine Inc. v. Federal Mine Safety and Health Administration, Ninth Circuit, No 04-71301 (March 30, 2006). The decision embodied an almost six-year struggle for the operator and provides significant guidance regarding miner/operator agency relationships.
In November 2000, Mark Fussell, a lead miner at the Original Sixteen, was fatally injured. Although there were no witnesses to Fussell’s accident, no one disputed that his conduct was negligent. Original Sixteen contested two citations resulting from Fussell’s death.
Following an evidentiary hearing, the Administrative Law Judge (ALJ)determined that Fussell was an agent of Original Sixteen and that his negligence should be imputed to the operator in assessing the civil penalty. The ALJ based his decision on the following:
(1) as lead miner, Fussell was ultimately responsible for the safety and operations of his work group; (2) Fussell had responsibility for safety and compliance with the law; and (3) Fussell was responsible for signing daily “safety sheets.”
Original Sixteen filed a petition for discretionary review with the Commission, but received no relief. Original Sixteen appealed its case to the Ninth Circuit Court of Appeals.
On appeal, Original Sixteen argued the ALJ’s agency determination regarding Fussell was wrong. The Court of Appeals agreed. In reaching its decision, the Court considered that all miners at Original Sixteen on the date of Fussell’s death were classified as lead miners, and Fussell had the same duties and responsibilities as the rest of the lead miners. Additionally, the fact that the most senior (by hiring date) lead miner is responsible for junior lead miners does not warrant a finding that the miner is an agent of the operator.
Quoting an earlier Commission decision, the Court acknowledged the sweeping implications that a finding to the contrary could have for rank-and file miners — “every time an experienced miner tells a less-experienced miner ‘what to do’ on the job, the experienced miner would be acting as the operator’s agent.” The Court found the nature of Fussell’s duties was not the type usually delegated to management and that he was not exercising managerial responsibility at the time of his negligence.
Finally, the Court considered the lack of evidence establishing that Fussell had authority to hire and fire, to assign equipment to, or to discipline employees. The fact that Fussell could assign tasks to other miners he was working with was insufficient to establish he was an agent of Original Sixteen, and the penalties were therefore vacated.
Any determination as to whether a miner is an agent will be a factual analysis unique to the particular operator, but the holding in Original Sixteen is instructive. Every operator should be aware of the implication of assigning managerial or mine critical tasks to employees. Again, every action of an operator’s agent can be imputed to the operator, so while an onscreen secret agent may be exciting, one at the mine site is a high-stakes gamble for an operator.
August 2006 AGGREGATES MANAGER
05/17/2007 - Mountain Messenger
Appeals Court Puts Boots to Judge Young: Sixteen to One on Defense
SACRAMENTO–Two separate lawsuits against the California District Attorneys Association (CDAA) and its carpet bagging prosecutors who filed murder charges against the Sixteen to One mine have been dismissed by the state Appeals Court.
That court, which was obviously looking to establish some new interpretations of law, took a very broad view of the issues before it and mis-stated some facts to arrive at its decision. It joined two plaintiffs, the Sixteen to One Mine, Inc, and Mike Miller, individual, and declared the lawyers are immune from suit by their status as deputy district attorneys, despite deficiencies in the appointment process.
The court further declared the suits against the lawyers were meritless, rewrote a protection of free speech law, and instructed the mine to pay the associations’ legal costs for the appeal. A lower court will decide if the mine is responsible for all the association’s legal fees.
Next week we will examine the nuances and ramifications of the court’s ruling: a law designed to protect an individual’s freedom of speech has now been expanded, and may well be used to restrict the public’s right to redress grievances.
The Appeals Court bluntly overturned the ruling of Judge Spike Young
who had ruled in the mine’s favor in Sierra County Superior Court. One central issue has been the focus of the case since it was filed; the legitimacy, and thus immunity, of the corporate prosecutors.
The CDAA contracted with the state Department of Labor to be available to rural district attornies, who might not have the time nor expertise, to prosecute industrial crimes resulting in worker disabilities.
In the case at hand, the CDAA was not invited in, but brought lame duck District Attorney Sharon O’Sullivan an already prepared case she had had no intention of filing. For whatever reason, she allowed CDAA to begin prosecution following a fatal accident where miner Mark Fussell was killed. At the time, the investigating agencies were only midway through their work, and certainly hadn’t filed conclusions with the labor department.
The mine was later exonerated of any wrongdoing.
Many believe O’Sullivan’s acquiescence was in revenge for losing the election to current District Attorney Larry Allen: O’Sullivan reportedly told Miller she hoped the case would blow up in Allen’s face. In fact, the judge dismissed the case in the face of CDAA misconduct before the grand jury and a lack of evidence, before it landed on Allen’s desk.
Miller had hoped to show that CDAA was politically motivated to begin the ill conceived prosecution. Governor Gray Davis was in the middle of a recall election and was desperate for the support of organized labor. A previous attempt to begin a show trial in a Yolo County farm accident didn’t pass the laugh test and was bounced at the preliminary hearing.
Reports that planned demonstrations in support of Davis and the prosecution of the farmer had to be cancelled after the dismissal of the case have been received from Yolo County.
The Appeals Court recent decision precludes Miller and the mine from determining those facts which were hoped to be ascertained through the discovery process.
5/24/2007 - Mountain Messenger
Must prosecutors obey the law, too?
SACRAMENTO–A three-judge panel of the California Appeals Court dismissed the Sixteen to One’s civil lawsuit against employee lawyers of the California District Attorneys Association (CDAA), essentially finding those lawyers’ violation of the law was a harmless mistake.
In addition, the court made the mine and CEO Mike Miller liable for CDAA’s defense expenses.
Miller is currently asking for a rehearing by the full appeals court. The CDAA lawyers prosecuted the Sixteen to One and Miller for murder following an accident that killed miner Mark Fussell. The charges were eventually thrown out by a Superior Court judge, and the mine was exonerated through the Mine Safety and Health Agency process.
At primary issue was the legitimacy of the prosecuting attorneys and their consequent immunity from civil prosecution for misdeeds. The law provides District Attorneys with immunity, regardless of their competence or motive for a prosecution. Miller and the Mine held that the CDAA lawyers had never been officially appointed deputy district attorneys, and thus unprotected by immunity.
Although they had been given no evidence the attorneys were legally appointed, the appeals court panel held the lawyers immune. Realizing the handicap of the people it was regulating, the state legislature gave would-be prosecutors two very simple tasks before they could wield the awesome power of the government over the citizenry. To no one’s particular surprise, the appeals court ruled that if a wannabee prosecutor manages half of those, it’s close enough.
A deputy district attorney is required to take an oath of office, and file his or her appointment with the county clerk. Such paperwork was never filed by the CDAA lawyers, and it is unclear who authorized their swearing-in.
The rationale behind the filing of the paperwork is to give the citizenry clear access to know who wields power in their name.
Deputy district attorneys around the state, it turns out, have routinely been neglectful of the second requirement since the jobs of the court clerk and the county clerk were separated. Thus, fearful that many cases would be nullified, the state Attorney General weighed in against the Sixteen’s position.
Leaving the citizenry to ponder what laws must be obeyed, and which are simply suggestions, the violation of which are “harmless errors.” Our advice to the citizenry is to get admitted to the bar before routinely ignoring the law.
The real haymaking by the appeals court was to vastly expand the cases in which “anti-SLAPP” lawsuits can be used. Strategic Lawsuits Against Public Participation (SLAPP) lawsuits are defined by the legislature as meritless cases designed to chill the exercise of rights recognized by the U.S. Constitution’s first amendment.
SLAPP actions became popular by big corporations’ use of lawsuits to intimidate activists, generally environmentalists, from public opposition to corporate plans. Subsequently, the legislature enacted legislation allowing a judge to promptly dismiss such lawsuits, and require the plaintiff to pay the victim’s legal expenses.
The first amendment does not recognize a citizen’s right to criminally prosecute his neighbor. Nevertheless, the appeals court held the Sixteen to One’s case was a SLAPP suit. Two Superior Court judges had opined differently: both thought the immunity issue had merit and should be adjudicated.
Despite the lower court system’s complicity, Miller and the Sixteen are now being required to pay CDAA’s legal fees for the appeal, leaving to a lower court the question of CDAA’s previous expenditures.
This classic ‘legislating from the bench’ is thought to be prompted by the legislature’s reluctance to institute ‘you-lose-you-pay’ laws regarding civil lawsuits. Given judges’ regular complaints of overcrowded dockets and overwork, we suspect the appeals court’s new, expansive definition of SLAPP suits is designed to chill the citizenry’s zest for use of litigation for redress of perceived grievances.
Having denied the citizenry this avenue, we look for the appeals court to legislate a new-found freedom to duel.
07/05/2007 - Wall Street Journal
Prosecution for Profit - Rounding up the tort vigilantes
When President Bush issued an executive order in May barring federal agencies from hiring private lawyers on a contingency fee basis, the press corps yawned. But Mr. Bush was getting out ahead of one of the bigger legal battles now raging across the country: prosecutorial neutrality.
America’s legal system is based on the idea that government officials act on behalf of the public interest, not for personal profit. That’s why we don’t pay policemen per arrest, judges a percentage of damages they award, or prosecutors a bounty for each conviction. Yet public officials are increasingly violating this ethic by outsourcing legal work to tort lawyers who profit from prosecuting public claims.
The practice developed in the 1990’s, when state Attorneys General promised trial lawyers a percentage (a contingency) of any settlement they could beat out of Big Tobacco, and it has since spread like bird flu. In Rhode Island and California, prosecutors have tried to give plaintiff firms a cut of judgments against lead paint makers. Oklahoma wants to reward private attorneys for suing poultry companies. Mississippi AG Jim Hood has signed contingency deals in securities cases.
The practice has become a lucrative new tort business, to the point that plaintiffs attorneys are now recommending lawsuits to state officials. In some instances, governments simply target an industry, and then let the tort lawyers decide whom to sue and on what grounds. The tort lawyers then turn around and send a portion of their profits back to the politicians in the form of campaign contributions.
The good news is that defendant companies are starting to fight back in court – and are winning. The Superior Court of California in April ruled that the county of Santa Clara could not pay contingency fees to private attorneys – in this case, tort lawyer giants Thornton & Naumes and Motley Rice – who were suing lead-paint manufactures on behalf of the government. The county had argued that since government retained “oversight” of the attorneys, there was no problem.
Judge Jack Komar pointed out the impossibility of determining how much control a government attorney must exercise to make a contingency fee deal legitimate. He cited the California Supreme Court’s 1985 Clancy decision, which noted that a contingency arrangement “is antithetical to the standard of neutrality that an attorney representing the government must meet.”
Unfortunately, California’s high court is one of the few to have addressed such fee agreements. Some defendants have noted the 1927 Supreme Court decision in Tumey v. Ohio, which barred paying government officials a bounty for arrests and convictions during Prohibition. The Rhode Island Supreme Court last year seemed intrigued by this argument, and returned a lawsuit over contingencies to a lower court for more consideration. Still, prosecutors are busy dreaming up reasons why Tumey doesn’t apply, and the contingency issue is probably destined for the Supreme Court. In the meantime, some states are moving to bar these contracts, or make them more transparent.
Government prosecutors claim they need outside lawyers because they lack the money and resources for big suits. But surely if the tort bar is as interested in “public justice” as it professes, it’ll work by the hour. And if prosecutors feel underfunded, they can always request more money from the state legislatures that control the purse strings. Budgetary oversight is in fact one check on prosecutorial excess.
In the 1935 Berger case, the Supreme Court noted the obligation of a prosecutor “is not that it shall win a case, but that justice should be done.” Sometimes that means foregoing a suit, or balancing litigation with other public policy goals. Such concepts aren’t priorities for trial lawyers, whose main goal is to hit the financial jackpot. The U.S. justice system is frayed enough without making trial lawyers the deputized vigilantes of public prosecutors.