What do you need to know?

State v. Witham, 2016 VT 51

By Andrew Delaney

This is kind of a “wha’ happen” appeal. Does one need to know that something is wrong to be criminally culpable? Not necessarily.

Mr. Witham had pled guilty to home improvement fraud over a decade ago. He did what he was supposed to do, got put on the home-improvement-fraud registry, and stayed out of trouble until someone reported that he was doing home-improvement work without having notified the Attorney General and filing a surety bond or letter of credit. See, if you’ve been convicted of home-improvement fraud, you have to notify the AG and file a bond or letter of credit before you start doing home-improvement work again.

Mr. Witham talked to a lawyer and found out that he was supposed to do the notify-and-surety thing. Oops. There was an investigation and he got hit with three counts of violation of the notify-and-surety requirement based on three different jobs.

He moved to dismiss. He was basically like, “Look, I didn’t know and the information doesn’t even allege I knew. Throw it out.” The State responded, “Hey, there ain’t no fault element in the statute.” The trial court agreed with the State.

There’s a five-factor test to determine whether a criminal statute has a scienter (a fancy lawyer way to say “knew it was wrong”) element. The trial court found that those factors favored strict liability because—grossly abbreviated—(1) it’s a misdemeanor (severity); (2) it protects the public from previously-found-to-be-untrustworthy contractors (potential public harm); (3) contractors should know the rules applicable to their business (knowledge of relevant information); (4) subjective knowledge is nearly impossible to prove up (difficulty to prove an intent element if required); and (5) the number of potential prosecutions is small (we’ll just call that the “judicial economy” piece).

Mr. Witham entered a conditional plea on two of the three charges and appeals.

The only question on appeal is whether a defendant has to know about the notify-and-surety requirement to run afoul of it. The SCOV agrees with the trial court and says, “Nope. Strict liability.”

Whether a statute has an intent element is a question of law, so it’s do-what-we-want-de-novo review.

Not that that makes much of a difference in this case. The SCOV points out that just because a statute doesn’t include an intent requirement doesn’t mean it creates an automatic strict-liability offense.

First, the SCOV looks at the statute’s plain language. Here, the SCOV reasons that not only did the legislature appear to intend—heh, see that’s funny—a strict liability offense, but it had ample opportunity to include a scienter element. Plain language ain’t getting us anywhere.

Next, we look at the common law because the SCOV’s “assumption is that the legislature enacted the statute with an understanding of historical legal concepts.” That’s what the SCOV says. Now, I would explain it something like: “Because the legislature has a lawyer infestation,” which is why I write the summaries and not the actual opinions. Anywho, “the law prohibiting home improvement fraud is entirely a creature of statute.” So common law also doesn’t get us any closer to a scienter element either.

That means the SCOV turns to the five factors that I boiled down to their essence above. Now, I could go through them in painstaking detail now. I could. I won’t.

I will, however, give the five factors to you as the SCOV lays them out: “The severity of the punishment; the seriousness of the harm to the public; the defendant's opportunity to ascertain the true facts; the difficulty of prosecution if intent is required; and the number of prosecutions expected.” See? It’s pretty much what I said but with prettier words and stuff.

The SCOV reasons that misdemeanor classification is key here. If it was a felony, the SCOV would be far more likely to impose a scienter element. The fact that it’s a misdemeanor suggests that strict liability might be just what the legislature ordered.

Mr. Witham tries a the-cumulative-effect-results-in-severe-punishment argument. The SCOV doesn’t buy it, noting first that it doesn’t look at the cumulative effect in this kind of analysis, and second, that it’s held that a twenty-year-max offense was a strict-liability offense. That’s going nowhere.

On the second factor, the SCOV reasons that the prohibited conduct is limited in scope and its prohibition is designed to prophylactically protect the public. So that again indicates strict liability.

The third factor isn’t a great reason for strict liability in the SCOV’s view. Though a contractor might be expected to know rules and regulations relating to the industry, this is a collateral consequence of a criminal conviction, not a building regulation. And there’s no easy facts-make-it-obvious argument. This isn’t like when someone doesn’t pull over when they’re being followed by a cruiser with blazing blue lights. So the third factor actually helps Mr. Witham a little bit.

But the fourth factor pulls it back. Basically, the SCOV reasons, the only way to prosecute the offense would be if the defendant admitted to knowing about and ignoring the notice-and-surety requirement. And so, the SCOV reasons, the legislature intended effective enforcement and did not intend—and so the SCOV will not impute—a scienter requirement.

The SCOV does reason that “the fifth factor cuts against strict liability.” In a nutshell, the fewer the prosecutions, the more likely the legislature meant to require proof of fault.

Basically, the SCOV reasons that it’s three-to-two factors in favor of strict liability and affirms.

Justice Robinson—joined by Justice Dooley—concurs “[b]ecause this case does not fall within any exception to the general rule that ignorance of the law is no excuse.” But the concurrence’s reasoning is a little different.

Everybody seems to be focusing on what intent or knowledge is needed for the offense. In the concurrence’s view, this is a case where the defendant is claiming ignorance of the law as a defense (one might refer to this as the “was that wrong?” defense). The concurrence runs through the cases and reasoning to illustrate that they all involved considering whether the State had to prove knowledge of a factual element of the crime, not whether the defendant claimed lack of knowledge as a defense.

“[I]gnorance of the law is generally no excuse to its enforcement.” But there are some exceptions—for example, when knowledge of the law is an element of the offense in question.

Here, Mr. Witham’s defense is that he didn’t know his conduct was illegal. But he doesn’t claim that he isn’t aware of any for the factual elements of the charge against him. “For that reason, the body of law dealing with mistakes or ignorance of the law is squarely on point.”

If convicted of home-improvement fraud, one must notify the Attorney General and usually provide a surety. There’s no intent language like “willfully” or “knowingly”—you just have to. Period. So, this isn’t a close case in the concurrence’s view.

The concurrence’s purpose is to distinguish between the multi-faceted, scienter-as-an-element-of-an-offense analysis versus the more-appropriate (in the concurrence’s view) ignorance-of-the-law-defense analysis.

So sometimes you can be convicted of a crime even if you don't know what you did was wrong. We could have some fun with that concept, huh?