State v. BashState v. Bash
- Reporters:
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- Before:
- Madsen
Lead Opinion
— Respondents Lawrence E. Delzer and Edward D. Bash were charged by information with violating
STATEMENT OF CASE
The State says that it will produce evidence at trial that two pit bulls owned by respondents attacked and killed Mr. Walt Freser, a seventy-five-year-old man, who was sitting in a wheel chair in his back yard, and that the dogs also seriously injured a neighbor, Mr. Herman Miller, when he tried to rescue Mr. Freser.
Respondents’ cases were consolidated for trial. Respondents moved for dismissal of the charges because the State failed to allege any mental element of the crime and it appeared the prosecution would proceed on the basis that
The State sought discretionary review by this court of that part of the trial court’s order creating a defense. The State’s motion was granted. Trial court proceedings are stayed pending this court’s decision in the case.
ANALYSIS
In 1987, the Legislature enacted a number of statutes concerning the ownership of dogs.
“Potentially dangerous dog” [as] any dog that when unprovoked: (a) Inflicts bites on a human or a domestic animal either on public or private property, or (b) chases or approaches a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, or any dog with a known propensity, tendency, or disposition to attack unprovoked, to cause injury, or otherwise to threaten the safety of humans or domestic animals.
“Dangerous dog” [as] any dog that according to the records of the appropriate authority, (a) has inflicted severe injury on a human being without provocation on public or private property, (b) has killed a domestic animal without provocation while off the owner’s property, or (c) has been previously found to be potentially dangerous, the owner having received notice of such and the dog again aggressively bites, attacks, or endangers the safety of humans or domestic animals.
” ‘Severe injury’ means any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery.”
Under
Finally, in addition to providing for criminal liability under
The statutory provision at issue in this case is
The owner of any dog that aggressively attacks and causes severe injury or death of any human, whether the dog has previously been declared potentially dangerous or dangerous, shall be guilty of a class C felony punishable in accordance withRCW 9A.20.021. In addition, the dog shall be immediately confiscated by an animal control authority, placed in quarantine for the proper length of time, and thereafter destroyed in an expeditious and humane manner.
Under
The State maintains, and the trial court agreed, that
Respondents correctly argue that the statute is ambiguous, primarily as a result
An ambiguous statute is subject to construction. Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996). Where a statute is amenable to more than one interpretation, legislative history and other aids to construction may provide guidance in construing the statute to give effect to the intent of the Legislature. Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178, 185, 829 P.2d 1061 (1992). The court has frequently looked to final bill reports as part of an inquiry into legislative history. E.g, State v. Silva-Baltazar, 125 Wn.2d 472, 479, 886 P.2d 138 (1994).
The final bill report on SSB 5301, the bill enacted as
Unfortunately, the final bill report does not resolve the ambiguity in the statute. It can be read to say that regardless of any, or no, previous classification, criminal liability arises—a reading consistent with the State’s position that
Principles of statutory construction may also be applied to resolve an ambiguity. Applicable here is the rule that statutes should be construed so that all of the language used is given effect, and no part is rendered meaningless or superfluous. Whatcom County, 128 Wn.2d at 546. If, as the trial court concluded, the “whether” clause means “whether or not” the dog has been declared either potentially dangerous or dangerous, the clause adds nothing to the meaning and is superfluous—if it were eliminated, the statute would mean the same thing. Giving meaning to the clause requires that it be construed as providing that regardless of whether the dog was previously classified as either a potentially dangerous dog or as a dangerous dog (but it was classified as one or the other), criminal liability may arise.
Respondents also urge that in the context of
Perhaps more importantly, under
Resolving the ambiguity in the statute as requiring the State to prove the dog was either a potentially dangerous dog or a dangerous dog, however, does not answer the question of whether a mental element is part of the crime established by
Where a statute does not specify a mental element, legislative intent may be determined by resort to another body of law generally guiding such an inquiry. Although there is no fixed test, courts have considered several factors in deciding whether a criminal statute provides for a strict liability crime where it does not specify a mental element. Whether a mental element is an essential element of a crime is a matter to be determined by the Legislature. State v. Cleppe, 96 Wn.2d 373, 378, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982) (citing State v. Henker, 50 Wn.2d 809, 812, 314 P.2d 645 (1957)); see also Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 1796-97, 128 L. Ed. 2d 608 (1994). The Legislature may create strict liability crimes. State v. Rivas, 126 Wn.2d 443, 452, 896 P.2d 57 (1995) (citing Cleppe, 96 Wn.2d at 380; State v. Stroh, 91 Wn.2d 580, 583-84, 588 P.2d 1182, 8 A.L.R.4th 760 (1979), and Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952)).
Thus, deciding whether a statute sets forth a strict liability crime is a statutory construction question aimed at ascertaining legislative intent. The inquiry begins with the statute’s language and legislative history. The “whether” clause in
Moreover,
In Staples, the United States Supreme Court identified several considerations which bear upon legislative intent to impose strict liability: (1) a statute’s silence on a mental element is not dispositive of legislative intent; the statute must be construed in light of the background rules of the common law, and its conventional mens rea element; (2) whether the crime can be characterized as a “public welfare offense” created by the Legislature; (3) the extent to which a strict liability reading of the statute would encompass seemingly entirely innocent conduct; (4) and the harshness of the penalty. Other considerations include: (5) the seriousness of the harm to the public; (6) the ease or difficulty of the defendant ascertaining the true facts; (7) relieving the prosecution of difficult and time-consuming proof of fault where the Legislature thinks it important to stamp out harmful conduct at all costs, “even at the cost of convicting innocent-minded and blameless people”; and (8) the number of prosecutions to be expected. 1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 3.8, at 341-44 (1986). Finally, criminal offenses with no requirement of a mental element have a “generally disfavored status.” E.g., Liparota v. United States, 471 U.S. 419, 426, 105 S. Ct. 2084, 85 L. Ed. 2d 434 (1985) (quoting United States v. United States Gypsum Co., 438 U.S. 422, 438, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978)); United States v. Nguyen, 73 F.3d 887, 890-91 (9th Cir. 1995).
For several centuries, common law crimes were defined to require both an actus reus, or guilty conduct, and a mens rea, the culpable state of mind, whether intent, knowledge, recklessness, or, more rarely, negligence. 1 LaFave & Scott § 3.8, at 340; see Morissette, 342 U.S. at 251 (common law crimes “generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand”); State v. Smith, 17 Wn. App. 231, 234, 562 P.2d 659 (1977) (at common law, general rule was that intent or sci-enter was an element of every crime), review denied, 89 Wn.2d 1022 (1978). “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Morissette, 342 U.S. at 250.
More modernly, statutes were enacted defining criminal acts, and courts concluded that common law crimes when codified continued to require intent or guilty knowledge, even if the statutes were silent on the matter. Id. at 252. An associated principle is that crimes which involve moral turpitude are malum in se and have been held to require a mental element, some level of “guilty knowledge,” even if the statute does not specify that element. State v. Turner, 78 Wn.2d 276, 280, 474 P.2d 91, 41 A.L.R.3d 493 (1970). In contrast, statutory crimes which are mala prohibita, if properly enacted within the police power, are often upheld without proof of an evil intent, and even without any mental element at all. Id. at 280. Such crimes often fall within a category of crimes called “public welfare” or “regulatory” offenses, such as those involving “pure food and drugs, labeling, weights and measures, building, plumbing and electrical codes, fire protection, air and water pollution, sanitation, highway safety and numerous other areas!.]”
Respondents argue that the goal of
In identifying the typical “public welfare offense,” the nature of the thing regulated is often a crucial inquiry. Items within such regulation have included “potentially harmful or injurious items!,]” and “dangerous or deleterious devices or products or obnoxious waste materials!.]” Staples, 114 S. Ct. at 1798 (quoting United States v. International Minerals & Chem. Corp., 402 U.S. 558, 564-65, 91 S. Ct. 1697, 29 L. Ed. 2d 178 (1971)). The Court has reasoned, though, that even statutes regulating dangerous items will not be treated as defining a public welfare offense where strict liability would criminalize a broad range of apparently innocent behavior. Id. at 1798-1800. The Court said in Staples, involving a statute criminalizing possession of unregistered machine-guns, that items or devices, even if dangerous, must be of a nature to “alert individuals to the likelihood of strict regulation.” Id. at 1800. The Court reasoned that “despite their potential for harm, guns generally can be owned in perfect innocence.” Id. at 1800. The Court observed that virtually any semiautomatic weapon may be converted, by internal modification, or in some cases by wear and tear, into a machine-gun within the meaning of the statute at issue, and give no visible external indication it is fully automatic. Id. at 1802. The Court held that under the statute criminalizing possession of an unregistered machine-gun, the Government had to prove beyond a reasonable doubt that the defendant knew that the gun possessed had characteristics bringing it within the statutory definition of a machine-gun, and rejected the Government’s argument that the statute established a strict liability public welfare offense.
This notion that a dangerous or destructive item which is regulated must be such as to put the owner on notice of the likelihood of regulation in order to find a strict liability crime favors respondents in this case. The analogy would be that as a general proposition, ownership of dogs is “so commonplace” (see Staples, 114 S. Ct. at 1800), and often occurs with such “perfect innocence” (see Staples, 114 S. Ct. at 1800), that dog owners would not be put sufficiently on notice of the likelihood of regulation to an extent to justify interpreting
The Court in Staples also reasoned that the harshness of the penalty is a relevant consideration in deciding whether Congress intended a strict liability crime. Staples, 114 S. Ct. at 1802-04; see 1 LaFave & Scott § 3.8, at 340-41, 343. “Other things being equal, the greater the possible punishment, the more likely some fault is required; and, conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault.” 1 LaFave & Scott § 3.8, at 343 (statute defining crime of taking contraband into state prison without specifying mental element not a strict liability crime; court stresses crime punishable by 3 to 5 years imprisonment) (citing, among other cases, State v. Strong, 294 N.W.2d 319 (Minn. 1980)); see also United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994) (mental element requirement presumed where violations of statute criminalizing transporting or receiving visual
The crime defined in
The seriousness of the possible harm to the public arguably weighs in favor of a strict liability offense. “Other things being equal, the more serious the consequences to the public, the more likely the legislature meant to impose liability without regard to fault, and vice versa.” LaFave & Scott § 3.8, at 343. Animals which attack humans are a serious problem and the history recounted in the final bill report discussed above demonstrates legislative concern for accountability. That history expressly concerns financial responsibility, a matter addressed in the legislation making $50,000 in liability insurance mandatory as a condition of owning a dangerous dog. But criminal liability was undoubtedly thought of by the Legislature as having a deterrent effect which would protect the public from unrestrained and uncontrolled dogs. Whether a strict liability standard would accomplish the goal of deterrence is doubtful, however, because unless the owner knows or reasonably should know of the dog’s dangerous propensities, it is unlikely that the owner would think it necessary to use extraordinary care in controlling the dog.
The record does not offer any information regarding the difficulty for the prosecution in proving fault nor does it offer whether the burden would be so time-consuming that imposing strict liability would be justified. Likewise, the record is silent as to the number of prosecutions which can be expected under the
On balance, the statutory scheme as a whole favors reading the statute as not setting forth a strict liability crime. At the least, as respondents argue, the inclusion of the “whether” clause in the statute does not clearly eliminate scienter, and given the nature of the crime as a felony and the harshness of the potential punishment, legislative intent to dispense with a mental element should be clear before the court concludes the statute defines a strict liability crime. Actual knowledge of a dog’s dangerous propensities, or a “should have known” standard, like a negligence standard, is consistent with the Legislature’s apparent purpose in enacting the 1987 statutes in
Cases cited by the State are not to the contrary. In its motion for discretionary review, the State relied upon State v. Coria, 120 Wn.2d 156, 839 P.2d 890 (1992) and State v. Rivas, 126 Wn.2d 443, 896 P.2d 57 (1995) as examples of areas of the criminal law where strict liability has been upheld. Coria involved statutes imposing enhanced penalties for drug dealing within 1,000 feet of a school bus stop. The court held that the statute constitutionally imposed the enhanced penalties regardless of the drug dealers’ knowledge whether he was in a drug-free zone. Coria is unlike the present case in an important regard, however. While dog ownership is wide-spread and generally innocent behavior, selling drugs is not.
Rivas is also unlike the present case. Rivas involved the question whether under the
We reverse the order of the trial court and hold that criminal liability arises under
Guy, Alexander, and Sanders, JJ., concur.
Concurrence Opinion
(concurring) — Under
Unfortunately, the majority then proceeds to ignore the plain meaning of the same passage. This leads the majority to an analysis of a notice or knowledge issue that is not presented by the facts of this case. The majority’s concern for owners who may be unaware of their dogs’ dangerous propensities is misplaced. Contrary to the majority’s paraphrasing,
As the majority points out,
The Yakima County Code creates a dog control department with the administrative authority to declare dogs to be “potentially dangerous” or “dangerous” for purposes of RCW Ch. 16.08. Yakima County Code 8.36.040(b)(1). Unless Yakima County animal control authorities have previously declared Respondents’ dogs to be “potentially dangerous” or “dangerous,” Respondents cannot be charged with a felony under
The majority’s failure to acknowledge the plain meaning of
The additional element of actual or constructive knowledge is probably unnecessary. An administrative declaration that a particular dog is “potentially dangerous” or “dangerous” would presumably include notice of that fact to the dog’s owner. If local animal control authorities declared a dog to be “potentially dangerous” or “dangerous” without notice to the owner, any subsequent prosecution under
Johnson and Talmadge, JJ., concur with Durham, C.J.
Notes
“[T]he statutes are not clear about how a dog is ‘declared’ or ‘classified’ as either a ‘potentially dangerous dog’ or a ‘dangerous dog.’ ” Majority at 604. We are concerned with the meaning of the term “declared” as it is used in
See State v. Whitney, 78 Wn. App. 506, 897 P.2d 374 (prosecution for driving with suspended driver’s license requires a showing that driver was provided with notice of suspension and an opportunity to be heard), review denied, 128 Wn.2d 1003 (1995).
Dissenting Opinion
(dissenting) — I dissent. Regardless of the elaborate and sometimes tendentious argument of the majority, I believe the statute is definitely a strict liability statute. The majority attempts to convert this into a “second bite” statute, but Mr. Walt Freser was killed by the attack of the dogs. Surely the majority did not wish to make this a “second death” statute.
We may have serious objections to the method which the Legislature chose to resolve this problem, but we are not platonic guardians. If we were to take on every instance of disagreement with a legislature that drafts its statutes in a manner unpleasing to us, we would have a full-time job. It is not the prerogative of this court to pass upon the desirability of a statute. The Legislature has perceived a problem, written a statute, and now it must live with the consequences. It is not our duty to do otherwise.
Smith, J., concurs with Dolliver, J.