Tuesday, October 20, 2015

Construction Confusion

State v. Richland, 2015 VT 126

By Elizabeth Kruska

Back in 2013, a 16-year old got a hold of some gin, went for a ride on his ATV, crashed the ATV, and died. As it turns out, the minor had texted the defendant, Kent Richland, earlier in the day, asking Kent to get him some alcohol. Kent was going to do it, but couldn’t find his ID. So, Kent arranged for a friend of his to get the alcohol. After the crash Kent got charged with enabling the 16-year old’s consumption of alcohol. He had a trial and was found guilty.

Kent appealed the conviction, and made four different arguments about why the case should be remanded for a new trial. SCOV didn’t even get to three of his arguments, because as it turns out, the first argument was enough to cause SCOV to reverse and remand. It was about statutory construction and jury instructions, and that was enough for SCOV to say there was a problem and to send it back for a new trial.

The problem here is with how the statute is written, how it was amended, and what the legislature actually meant when it changed the statute. The statute says, in pertinent part, “no person shall… knowingly enable the consumption of malt or vinous beverages or spirituous liquors by a person under the age of 21.” Criminal acts are made up of a mental state and an action. Mens rea + prohibited activity = you better call Saul.

When the court instructed the jury in Kent’s case, it included an explanation that the word “knowingly” only modified the word enable, not the other elements. The court felt that Kent didn’t have to know that the consumer was under 21. Kent argued that “knowingly” modified both enable, and also the age element. That is to say, that not only would someone have to know that he or she was enabling the consumption of alcohol, but that he or she would also have to know that the consumer was under 21 at the time. The trial court said, “nice argument, but we’ll do it my way.”

SCOV says, “Sorry, trial judge, but Kent was right about this one.” Then SCOV goes on to explain the rationale behind the decision. When they review a statute, they do it de novo, or totally anew. The whole goal in reviewing a statute is to figure out what the legislature intended when they passed the law. Sometimes you can tell, and sometimes you can’t. But you always start with the plain language of the statute and see if you can figure it out from that. The reason for doing it that way is that the court assumes that the legislature knew what it was trying to say and used the right words in the right order to say it. If you can tell from doing it this way, that’s how you do it.

So, SCOV looks at the plain language of the statute and says, “Hmm, seems pretty clear that a person really does need to know the age of the person.”

There are a couple other principles used in statutory construction. One is the concept that when there’s a scienter element, or a mental state element, that it applies to all the other elements that follow it. This practice is well known, really common, and codified by lots of different branches of various governments. Also, grammar. (See what I did there with bad grammar?) The rules of English grammar that we’ve all agreed to follow make it natural to read a scienter element—which is really just an adverb—so that it modifies the parts of the statute that follow.

Lots of authors famously hate adverbs. I think Stephen King has been quoted as saying something along the lines of “the road to hell is paved with adverbs.” Elmore Leonard said never to use and adverb to modify the word “said” (or any other word). On the other hand, some authors, like J.K. Rowling, have built entire literary fortunes on using adverbs. Part of the problem is not with adverbs themselves, but that they can be misplaced. A misplaced adverb or other modifier makes a sentence that used to make sense turn into a sentence that doesn’t make a whole lot of sense, or makes it mean something different.

The statute on enabling consumption of alcohol by a minor used to be a strict-liability crime. Until it was amended in 1997, there was no “knowingly” element to it at all. The state didn’t have to prove that the defendant knew what he or she was doing in order to prove the charge. The legislature revamped some statutes in 1997, including the alcohol-enabling statute. There was a concern about how widespread DUIs had become, especially among young people. Part of the legislature’s goal was to fix some statutes in an effort to punish people who made it easier for young people to get alcohol. The overall goal was to bring down the number of DUIs and to increase public safety. This seems like a good idea.

What happened was that the legislature inserted the words “knowingly enable” into the statute. Perhaps the legislature intended for there to be a different result. What they got, though, might have been a misplaced modifier, because there is nothing contrary in the statute to indicate that the word “knowingly” wasn’t meant to modify all the other elements that followed—including the “under 21” element. The State’s argument was that “knowingly” is meant to modify only “enable.” But the rules we’ve all agreed to about statutory construction and our language say that the statute doesn’t read that way.

SCOV isn’t quite done. Sometimes there is an error in construction and jury instructions, but it might be harmless. SCOV says this error wasn’t harmless. Since the jury was instructed that “knowingly” only modified “enable” and not the other elements, the effect was to relieve the State of some of its burden of proof. That isn’t harmless at all, since it would have had an impact on the jury’s understanding of the law and how to apply the facts to it.

So, the case gets reversed and remanded, and Kent will get a new trial with jury instructions consistent with the law.

Justice Eaton, joined by Chief Justice Reiber, dissents. The point here is to figure out the intent of the legislature, and to make sure that the law is being enforced and interpreted to reflect that intent. Even though there are rules of statutory construction, those aren’t law. They’re aids to help you do what you need to do. There isn’t a hard-and-fast rule about following any particular statutory construction rule; you use it if you need to.

The dissent examines the legislative history of the statute at issue here. It doesn’t seem like the legislature meant to make the word “knowingly” apply to any element other than “enable.” The context of the statutory amendment was that the legislature didn’t want to punish somebody who inadvertently enabled consumption. The classic example – adults go away for a weekend and the teenaged kids have some friends over and raid the liquor cabinet. The adults shouldn’t be criminally punished for lawfully owning alcohol just because the kids got into it. It makes sense that there should be something more volitional about the enabling.

The dissent’s concern also, is that the effect of the majority’s interpretation would be to allow ignorance and to encourage willfully turning a blind eye if a person just simply didn’t ask the consumers how old they are. Unfortunately, in this case, a young person died after consuming alcohol and crashing his ATV. The dissent is not on board with statutory construction that allows the person who facilitated that alcohol getting to the teenager to say, “Oops, I didn’t know he was 16” and not to be punished at all for it.

Furthermore, the word “knowingly” actually is inserted into the statute after the words “sell” or “furnish.” So now, this statute has kind of a weird thing going on where there’s no mental state element for selling or furnishing alcohol and knowing the age of the purchaser, but there is for enabling. This doesn’t really square with the dissenters.

1 comment:

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