*1 Plaintiff-Respondent, Wisconsin, State Malec, Defendants- Edward Stepniewski Richard Co-Appellants-Petitioners.
Supreme Court 4, 1981. Argued November No. 80-750-CR. January 5, 1982. Decided 98.) (Also reported in 314 N.W.2d *2 appellants-petitioners For the (in there a brief was appeals, reply court by court) in this brief Richard Reilly Girnbel, E. Reilly Gimbel <6 of Milwaukee and argument by Reilly. oral Richard E. plaintiff-respondent argued For the the cause was Becker, David attorney general, J. assistant with whom attorney gen- on Follette, the brief Bronson was C. La eral.
STEINMETZ, principal J. The issue in this case prove whether the state must intentional conduct charged defendant all circumstances of a violation of 1977,1 10.0.26(3), This issue for a conviction. Stats. re statutory constitutional involves a construction court, Honor process. trial quirements of due Jr., court held Wedemeyer, a trial to the able Ted E. charged requisite all intent is not a to be shown process not violated. was and that due circumstances appeals agreed, and we affirm. The court of challenges the defendant, Malee, Edward also sufficiency conviction for violat- evidence for his ing (1) (b), 289.02(5) 1977.2 and 943.20 Stats. sees. provides: Sec. Stats. 100.22, person 100.15, 100.19, or “Any 100.20 who violates s. obey regulation intentionally refuses, neglects or fails to who 100.20, shall, offense, be fined for each made under s. 100.19 or imprisoned in the coun- $5,000, than not than nor more less $25 ty jail year for not more than one or both.” *3 1977, provides: Stats. Sec. by mortgage any on proceeds of “(5) Theft contractors. any any prime for im- paid or contractor subcontractor land provements moneys paid to upon premises, mortgaged all the and by any improve- any prime for or owner contractor subcontractor only prime ments, the con- in of a trust fund the hands constitute be- due or to claims to the amount of all tractor or subcontractor prime for owing contractor or subcontractor due or from the come improvements, until the claims all for the labor and materials used any in the hands of paid, a been not be trust fund have and shall moneys any prime any by contractor person. The use of such other claims, except purpose until all other for or subcontractor dispute subject and then bona fide the of a those which are paid in actually dispute, been have the amount the extent of prime by con- the deficiency, pro a is theft rata in cases of full or pun- misappropriated moneys and is so or subcontractor of tractor prime or subcontractor contractor under 943.20. ishable s. If by theft corporation, misappropriation be deemed also shall such a any officers, responsible for agents corporation directors or moneys Any misappropriated which misappropriation. of such capital repayment, dividend, dis- salary, loan as have been received corporation not by any shareholder tribution or otherwise liability misappropriation a civil responsible shall for the fund the trust and restored be recovered shareholder and specified by any brought interested by action in this subsection sufficiency appeal sup
The test on of evidence to port adduced, a conviction whether the evidence be rationally lieved and considered the trier was of fact guilt prove beyond sufficient rea defendants’ 180, doubt. Blaisdell, sonable State 2d Wis. (1978). N.W.2d 69 defendants, In 1978 and and Edward Malee Stepniewski, engaged Richard improve- were in home through county ment sales solicitations Milwaukee Energy Systems, firm named Control Inc. Mr. Malee president principal was the and stockholder the com- pany, Stepniewski while a salesman-employee Mr. was kept company’s firm. Mr. Malee books, had power approval company’s of final con- all the tracts, projects work coordinated on its and often worked personally Stepniewski on homes. Mr. solicited contracts drafting for the company, which on included contracts firm, complaints behalf of the and questions handled pressed by its customers. party purpose. Except provided subsection, for that in this this against any section does not a civil action other create cause of person. paid full, Until all claims are have matured notice filing expired, proceeds moneys or have such not be shall subject garnishment, execution, levy or attachment.” 943.20(1) (b), 1977, provides: Sec. Stats. “By office, employment, virtue of his business or or as trustee bailee, having custody money possession negotiable or of security, paper writing instrument, negotiable another, or other intentionally uses, transfers, conceals, possession or retains *4 money, paper security, instrument, writing such or the without contrary consent, authority, con- owner’s to his and with intent to person except vert to his or to the own use use of other any money negotiable security, owner. A in- refusal to deliver or strument, paper negotiable writing, pos- or other which is his custody by employment, office, session or virtue of business or his bailee, upon person re- trustee or demand of entitled it, by required law, prima ceive or as facie evidence of an intent meaning paragraph.” convert to his own use within the this produced
Evidence at the trial showed that Mrs. Stella daughter, Terri, Richlen and her contracted home improvement Energy Systems, work with Inc., Control through Stepniewski. paid payment The Richlens a down $4,000 money for the work and this was transferred deposit to Malee for Energy Systems, Inc., Control account. No work was ever done under this contract. Mr. Malee given told the that he Richlens had some of money Boy their to the contribution, Scouts as a but didn’t know how much of it was He theirs. also admit- gave ted at trial that money he some of the Richlens’ Boy usage Scouts. This those funds was not a term of contract, by approved nor itwas Rich- addition, In lens. the trial court held the defendants’ receipts journal clearly cash reflected the use of Richlens’ money gift Boy Malec’s to the Scouts. The ad- above mission of Malee was sufficient for conviction.
As this court
supra,
stated in State Blaisdell,
at 178:
“Under
question,
posi
statutes here in
the state’s
_
tion is the
LeRoy,
correct one. In the case of Bastian v.
Wis. 2d
(1963),
The court sentenced to one and one- years years imprisonment half and six consecutive probation. sentencing, proba- At the on time of he was by tion an earlier conviction under theft con- tractor statute.
The court Malee sentenced to 13 months incarcera- by contractor, years plus tion for theft six consecutive prison. improvement latter sentences for home stayed, placed violations proba- was were Malee on years. tion six addition, probation,
In as terms the defendants jointly severally were held liable for full restitution. statutory The defendants did not issue of con- raise the appeals; however, struction in the court of is issue raised here. interpret language
The defendants the focused of sec. 1977, intentionally refuses, Stats. “or who neglects any regulation obey fails to made s. under 100.20, shall, meaning 100.19 .. .” as that “inten- tionally" following all the words it. modifies
In Balestrieri, 1, 7, State v. 87 269 Wis. 2d 274 N.W.2d (Ct. App. 1978), that court held: “We therefore hold that the term 100.26(3), Stats., ‘intentional’ in sec. modify modifies the term It ‘refuses.’ not does the terms ” ‘neglect’ or ‘fails.’ court This affirmed the decision appeals evenly the court of in Balestrieri divided Balestrieri, 362, court. State v. 361, 96 2dWis. 291 N.W. (1980). again 2d 579 The issue before court. this being reason “capable understood
The statute is
different
ably
persons in two or more
well-informed
Ehly,
ambiguous.
consequently
Wirth v.
senses” and
441,
; accord,
(1980)
State
433,
287 N.W.2d
Wis. 2d
Cty.
Ct.,
2d
Warrington
100 Wis.
ex rel.
Shawano
Cir.
v.
ambiguity
590,
(1981).
ex
726,
When
303 N.W.2d
n.
ists,
aids in determin
resort to extrinsic
“this court
441-42;
Ehly, supra,
ing legislative
at
intent.” Wirth v.
County
Proegler,
2d
accord,
Milwaukee
Wis.
1980).
(Ct. App.
of conduct to be included anas offense of sec. 100.26(3), penalties provided: Stats. “shall for each of- fense, be fined not less than nor more than $5,000, $25 imprisoned county jail or in the for not more than one year or both.” legislature has shown its awareness the use of neglect respect
intentional and other words in oth- statutes, er i.e.: Abandonment; (1) “52.05 uniform act. PENALTY. Any person who, just cause, wilfully without deserts or [intentionally] neglects provide or refuses to for the
support and spouse maintenance of his or her or child years (Emphasis added.) under . . . .” Contributing delinquency children; to the “947.15 neglect neglect; contributing (1) to death. The follow- ing persons. . . “(a) Any person encourages intentionally . . . who delinquency neglect contributes to ... (Emphasis added.) . .” child. . legislature When the intended those statutes that modifying “intentionally” apply word to other words “neglect,” conjunctive 'and also it used the “or.” word It did not do inso Stats. until after *8 neglect the word before word “fails.” Intention- ally modify “fails,” cannot since one who has intentional- ly obey purpose failed to is one who a mental has of re- obey fusal to duplicitous. and such use would be argues The defendant that sec. Stats. or, was meant to include intentional conduct alterna- tively, process person that it violates due to convict a rejected by with mens a crime no rea. This idea was Supreme U.S. Court and this court in several instances years. rejection over the first Wisconsin was in Hartfiel, (1869), State Wis. which involved the prosecution keeper serving a saloon a minor an in- toxicating liquor when the statute did not include the “knowingly” “wilfully.” jurors words or in- were ignorance part structed that or mistake on of the ac- person cused as to fact that the six-foot-one-inch who was minor served was a was no defense. The court held: question police act in regulation, “The is a and we have legislature no alty, irrespective son not without pen- doubt that the intended to inflict the knowledge per- of the or of the motives provisions. Indeed, who violated has its if this were so, plain might it is that the statute be violated times number, possibility convicting with no offend- ers, and so it would become a dead letter on the statute book, legislature and the evil aimed at remain al- guard wholly against results, most the untouched. To such legislature has, effect, provided the saloon keeper, must know intoxicating liquors drinks, other vendor of person the facts —must know that qualified whom drinker, he sells is a within mean- ing statute; and, not, peril if he acts at his in dis- obeying requirements of the law.” Id. at 62. Supreme
The U.S. Court history stated the of crime without intent States, Morissette v. United 342 U.S. (1952) and declared: “Crime, compound concept, as a generally constituted only from evil-meaning concurrence of an mind with an evil-doing hand, congenial was to an intense individual- deep ism early and took root in American . . . soil. “The multiplied industrial revolution the number of exposed injury workmen and sources of increasingly powerful from complex mechanisms, by freshly driven discovered energy, requiring higher precautions by em- ployers. velocities, Traffic volumes and varieties un- subject wayfarer heard of came to to intolerable cas- ualty if risks owners and drivers were not to observe new Congestion cares and uniformities of conduct. of cities *9 crowding quarters of called for health and welfare regulations simpler undreamed of in times. Wide distri- goods bution of tion of became instrument of wide distribu- drink, food, dispersed harm when those who drugs, securities, comply and even did not with reason- quality, integrity, and care. able standards disclosure dangers engendered increasingly Such have numerous regulations heighten which detailed duties particular industries, trades, proper- those ties or activities fare. control public health, safety or wel- that affect many a “While these duties are sanctioned more not, liability, lawmakers, wisely strict civil have whether or sought regulations to make such more effective invoking applied by criminal sanctions to familiar technique prosecutions of criminal This convictions. prosecu- has confronted the tions, with courts a multitude of regulations, based on or statutes administrative aptly ‘public for what have been called welfare offenses.’ neatly accepted cases fit These classifications against Many do not into of such offenses, of common-law such as those state, person, public property, or morals. positive of these offenses are not in nature of aggressions invasions, or with which the common law so dealt, neglect often law but are the nature of where the requires care, duty. imposes or inaction where it Many regulations of such violations result no direct or injury person merely property immediate ate the or but cre- danger probability it which law seeks minimize. While such offenses do not threaten the se- curity regarded currence sential they treason, in the the state manner of against authority, as offenses its for their oc- impairs efficiency of controls deemed es- presently to the social order In constituted. respect, violator, this whatever the intent the in- jury not same, consequences injurious is the and the according fortuity. Hence, legislation applicable offenses, policy, specify such as a matter of does not in- necessary accused, if tent as will element. The he does not usually prevent violation, position is in it society might reasonably expect with no more than care might reasonably and no more exertion than it exact from responsibilities. Also, penalties who his one assumed *10 commonly relatively small, and conviction does no grave damage reputation. to an offender’s Under such considerations, and dispensing construing courts have turned to statutes regulations which make no mention of intent as holding guilty with it and act alone not, however, makes out the crime. This has out with- been expressions misgiving. of recently “It was not until the court took occa- explicitly ingredi- sion more to relate abandonment of the intent, merely expedi- ent of not with considerations of ency obtaining convictions, pro- nor with the malum crime, peculiar kibitum classification but with the quality nature and of the offense. We referred to ‘. . . type legislation whereby penalties a now familiar regulation,’ continued, serve as effective means legislation dispenses require- ‘such with the conventional wrongdo- ment for criminal conduct —awareness some ing. larger good puts In the interest of the it the burden acting upon person of standing at hazard innocent otherwise but responsible danger.’ public relation to a But ‘Hardship we warned: there doubtless be under a penalizes though statute which thus the transaction con- wrongdoing totally wanting.’ sciousness of States at United Dotterweich, 277, 280-81, 320 v. U.S. 284.” Id. 251-56, 259-60. In State Milk Dried Products Co-operative, v. 16 Wis. 357, considering 2d 114 412 (1962), N.W.2d sec. 348.- 15(2) (c), Stats., required weight which certain limita- highways, operated tions for on vehicles we held: part general- “This section is of a statute which welfare ly prohibitum doing creates a crime malum for the of an requirement act without of intent. . . . “Keeping prohib- in mind that welfare mala statutes are general exception ita and an an intent of some blameworthiness is to the common-law rule that required, we must light legislative construe the of the his- statute in tory legislative expressed appropriately when intent is language giv- statutory and such construction can be without that criminal laws are to en violence the rule strictly against government. construed penalty nature, imposing criminal “Statutes of this them, irrespective for their of requirement intent to violate have degree diligence purpose for the protection public shall render a violation which People Roby (1884), impossible. v. 52 Mich. thereof 365; 577, (1912), v. Reismier State Wis. N.W. 487, 153; (1920), Scott v. State 171 Wis. N.W. Kenyon 615; (1923), Knecht 179 Wis. N.W. v. 82; (1934), 286 192 N.W. Ober Mass. Commonwealth 25, 189 . N.E. . . 601. legislative scope “Where action is within the fairly questions police power, ness, wisdom, debatable reasonable- *11 propriety action, not for the de- of are legislative body. for termination of the court but the 379, 460; (1951), v. State State Ross 259 Wis. 48 N.W.2d Parking (1951), 147, v. Minn. United Stations 50; Flickinger (1949), v. 165 Pa. N.W.2d Commonwealth 95, Chicago Super. 779; (1952), v. 2d Jones 67 Atl. People App. 802; (1950), 310, Ill. 326 Mich. Breen 108 N.E.2d 359, 361, Id. 362-63. 720, 40 778.” at N.W.2d 545, In Megna, West Allis v. 26 Wis. 2d 133 N.W.2d prohibiting (1965), a the court dealt with statute imposed premises and it minors to be on tavern strict held upholding law, liability keepers. the on tavern In purpose simply ‘to court held: of the statute “The ” keep patrons out of taverns.’ as or customers minors application proper state’s This was held to be general power citizens. police welfare of its creating 100.26(3), purpose for sec. The statement of (2): 100.20(1) and 1977, is reflected in sec. Stats. practices.. competition trade “100.20 Methods prac- (1) competition in and trade business Methods of compe- fair. Unfair methods tices business shall be practices in business and unfair trade tition business hereby prohibited. hearing, may public issue “(2) department, after The competition in bus- general forbidding methods orders practices iness trade in business which are determined by department department, to be unfair. The after public hearing, general prescribing issue orders competition methods of practices in business or trade by department business which are determined to be fair.” purpose The statement appears (1) as in subsecs. (2) legislature reflect a protec- concern of the with public, tion proper of the and it has chosen means of exercising police power protect its public welfare. reading urged literal of the statute the defendants leg- would purpose interfere with the substantive of the islature. legislative history present 1977, previously
Stats. leads conclusion recited “intentionally” modifying to the word word “refuses.” 1921,
In appears statute first Laws of ch. time, 1921.5 “wilfully” At that neither the word nor “in tentionally” range However, were in the statute. punishment substantially now, i.e., then was the same as punished by “be fine not more than five thousand by imprisonment dollars or jail county in the for not year, more than one imprison both such fine and ment.” 366,6
The Laws of responsibility ch. added *12 agents, the acts of principal as well as a and added the 5 571, 1495-292, 1921, Ch. sec. Laws of states': “Any person any provision who violates 3 of sec- subsection 1495-20, tion 1495-19 or 5 subsection of section or who violates or refuses, neglects obey any regulation or fails order or made 1495-14, shall, upon under section 1495-16 or 1495-17 conviction thereof, by punished be fine of not more than five thousand dol- by imprisonment county jail lars or in the for not more than one year, by imprisonment.” or both such fine and 6 366, 1923, 1495-292, sec. Laws Ch. states: “Any acting person, (cid:127)personally through agent either or or as agent another, wilfully provision any who violates of subsection
275 “wilfully.” “wilfully” However, word modified “vio- “refuses, neglects separated lates” and “violates” from obey” conjunctive Significantly, or. or fails with the penalty remained constant. Then, 550, 1935, 1935, in a revisor’s Laws of ch. bill 366, present “wilfully took its form and statute “intentionally” violates” was and the word eliminated appears before the word “refuses.” “Refuses” followed by comma, conjunctive or, and, therefore, not the word intentionally already opinion, stated reasons this modify was meant to “refuses.” 650, Morales, 656,
In State v. 51 187 Wis. 2d N.W.2d (1971), we held: Supreme “The enunciat- United States Court has never requiring proof of mens ed a constitutional mandate rea in all be held accountable cases before an accused can 514, 535, (1968), Powell Texas for his acts. U.S. v. Sup. 20 L. 2d 1254. The free Ed. states Ct. proof require mens rea. which not to create crimes Roberts do (1969), 537, 545, 164 2d N.W. State Wis. 525.” 2d supra, Texas, today. In Powell v. This the law remains gave concurring Black, opinion, in a at Justice determination, following, which for his the basis tool that a social still holds true: “The criminal law is goals.” seeking variety employed a wide 1495-20, or who of section 3 of or section 1495-19 subsection obey or neglects order wilfully fails to refuses, or or violates 1495-14, or 1495-17 shall regulation 1495-16 made under section every guilty such each misdemeanor and offense not more shall, upon thereof, punished a fine conviction county jail by imprisonment in the five than thousand dollars imprison- year, fine such one both for not more than ment.” *13 expressed thought
This court
the same
Justice
Black
Pauly
Keebler,
428, 439,
175 Wis.
to cite the
based.”
cases on which
v. Collova,
In State
79 Wis. 2d
persons in home sought referrals, by advertising persons in out, those and part society help most need for the who were in of and practices. It is uninformed as to the law construction and body necessary legislative pro- to and reasonable by placing a burden tect the innocent who need services legal guidelines regularity, on the and of evenhandedness part a purveyors It of com- is as much the services. fulfilling honest, forthright it is to petition to and recog- always not public for a lower bid. does work recognize it Good, entrepreneurs this. honest nize holding strictly a liable in law them not hurt are requires minimum standards punitive which statute starting require dates to It is behavior. not offensive It a would completion to contract. be stated dates persons wishing to be held appear not offensive accountability. semblance a could be there Stats. Under sec. charge he as to what problem to a defendant of notice refusal, against; one i.e., of intentional one had defend requirement neglect the administrative obey rules, obey or one of Any failure to an order. of these and, 100.26(3) proven forms of conduct violates if therefore, the defendant is entitled to notice in order to prepare They separate a defense. and can be dis- ways committing tinct violation the same statute. attorney charged The district in this case each specifically according defendants evidence he be- guilt. subsequently available, proved lieved In their multiple all counts, charged the defendants were obey regulation. with a failure to These were addition- *15 charges al improvement under the home rules and were separate charges by from the of theft contractor. proscribed
Since each of the three courses of conduct may alleged distinct, the method of the crime must charged specifically charges multiplicitous to avoid correctly for the same conduct or acts. was taken Care charges in specificity brought; this case in the the proven clearly conduct of the defendants to be was set Therefore, problems forth. the notice to defendants dis State, cussed Manson v. in 2d 101 Wis. 304 N.W.2d (1981), regard in never arise to this case. original charged information filed in this case engaging intentionally defendant each with an unfair improvement practice by home trade which was followed allegation practice. a “to wit” of the unlawful An amend- ed information with was filed the trial consent. court’s charge The amended information did not intentional They improvement practices. acts the home were improvement instead to referred “unfair home practice, trade wit.” to After statement each this count, alleged specifics practice the unlawful were i.e., forth, set either state in contract the failed to the periods dates or time on or within which the work was begin completed, to or be the defendants failed be- gin complete time work on or within the dates period represented or defendants. the defendant argue attorney that will defendants district allege intentional refusal since that never rea,. showing requiring mens a The claim is conduct neglect attorney choose or failure the district will charge easily burden. as to state’s as a more satisfied bring- attorneys ignores integrity district This ignores potential ing no- proper charge, also lesser, easily addition, bringing more problem. In tice charge may de- provable fit the available of not evidence relevancy problem be cre- conduct, fendants’ argument during Finally, the trial. ated for the state attorney may choose recognize the district fails charge if that evi- he believes “intentional refusal” guilt, prove and then present defendants’ dence is wide-range high limits ask the trial court penalty available. available, charging upon
By specific the evidence based jury verdict to arises problem submission of the no with the consistent verdict a unanimous order have problem raised conduct. The entire proven defendant’s 1977) (5th Gipson, 553 F.2d Cir. States v. United *16 supra, will therefore be case, Manson as discussed in the avoided. appeals is court of
By decision of Court. —The affirmed. I ABRAHAMSON, (dissenting). dis- J. S.
SHIRLEY vio- convictions of I that the defendants’ conclude sent. 1977, be sustained 100.26(3), cannot Stats. lations of sec. namely crime, the defendants’ because an element rea, intent, criminal mens called state mind whether scienter, proved. knowledge guilty was not or 100.26(3), charged under were The defendants promulgated regulations obey failing to 1977, Stats. with by Department Agriculture, Trade & Consumer 100.26(3) specifies Protection.1 Sec. “[a]ny per- son . . . intentionally refuses, neglects who or fails obey any regulation 100.20, shall, . . . made under s. each offense ... be fined less not than nor more $25 $5,000 imprisoned county jail than or in the not year (Emphasis added.) more than one or In both.” majority, contrast with I word “in- conclude that tentionally” in sec. Stats. not modifies “refuses,” “neglects” the verb but also the verbs and “fails.”
The state asserts elements it which had prove to sustain the convictions are:
(1) improvement Defendants entered into home contract with a consumer.2 regulations promulgated pursuant 100.20, were to sec. providing Stats. the relevant subsections follows: “(1) competition practices Methods business and trade competition business shall be fair. Unfair methods of in business practices prohibited. and unfair hereby trade in business are “(2) department, public general hearing, after issue forbidding competition orders methods of trade in business or practices in department business which are determined public department, hearing, may general unfair. The after issue prescribing competition orders methods of in business or trade practices department business which are determined be fair.” 2 Ag 110.01(1), Code, improvement Wis. Adm. defines home and Ag 110.01(3), Code, improvement Wis. Adm. defines home con tract as follows: “Ag (1) improvement’ 110.01 Definitions. ‘Home re- means the modeling, altering, repairing, painting, modernizing or of residen- property, making tial or non-commercial or additions there- to, to, includes, installation, but not construction, limited improvement
replacement, repair 'sidewalks, driveways, pools, swimming terraces, patios, landscaping, fences, ga- porches, rages, waterproofing, protection basements basement fire de- vices, heating air-conditioning equipment, softeners, water purifiers, carpeting heaters and wall-to-wall or attached or inlaid changes, improvements coverings, repairs and other floor made *17 (2) prior comple- money to the Defendants received obligations a writ- tion of their under the contract3 and by ten contract failed set executed the defendants to period on or within which the forth dates or time begin completed.4 work was to and be (3) begin complete work on failed or Defendants to period specified in the home or within the dates improvement contract.5 on, part forming or of the residential non-
in or attached to or a property, not include the construction of commercial but does existing conversion of new residence. The term extends prop- into or non-commercial commercial structures residential erty.” improvement “(3) means an or ‘Home contract' oral written agreement or and owner seller and tenant between a seller property, or residential or non-commercial or á seller and lessee of obligated if the lessee a tenant or lessee payment tenant or to, proper- upon improvements in, made or such of home per- ty, agreements all the seller and under which includes improvements, or home furnish form labor or services for render materials in connection therewith.” 110.05(1) (a) provides Ag follows: as requirements. (1) “Ag improvement contract 110.05 Home changes following improvements contracts and all home writing: thereof, be in terms and conditions shall money any payment other con- “(a) requiring Contracts obliga- completion by buyer prior seller’s sideration contract.” tion under the 110.05(2) (d) provides Ag follows: changes in the terms “(2) improvement all contracts and Home writing, required thereof, section under this and conditions clearly ac- thereto, parties and shall signed he all shall conditions curately legible all form terms forth in set following: contract, particularly the tois the work period on or which “(d) within or time The dates completed begin the seller.” and be Code, provides: 110.02(7) (h), Ag Admin. Wis. engage practices. shall No seller “Ag trade Prohibited 110.02 competition trade following unfair unfair methods in the practices: *18 282 prove
The state need not that the work for contracted completed; was not completed that the work was unsatis- ; factory paid that the any consumer the defendants sum in addition payment; to the down the defendants failed to payment return the consumer; down to the or that the defendants’ contract competi- was deleterious to tion. Further prove state asserts that it need not apparently scienter. position Thus the state’s is that a improvement home guilty contractor is of a if the crime improvement home intending contractor —without harm the consumer toor violate the law and ac- without tually harming specify the consumer —fails to in a writ- period doing ten contract the time the work or be- gins completes specified the work after the dates justification (as contract without in the defined regulations). principal statutory issue in this case one of is
construction; always Does require proof sec. 100.26(3) scienter, i.e., proof the defendant acted “inten- tionally.” case, depending second issue of the on issue, resolution of the is what first “strict does liabil- ity” “intentionally” mean or what does fi- mean. The nal process issue is whether the if statute violates due required scienter is not as element of the offense.
I. repeatedly court has This stated that of all “the aim statutory is construction to discern the intent of the “(7) . PERFORMANCE.. . “ (b) begin complete Fail to or work on the or dates within period specified contract, improvement time home or stop- represented, delay otherwise labor unless the reason of unavailability page, supplies materials, unavoidable casual- ties, beyond Any changes cause the seller’s control. other periods in the dates or time stated in a written contract shall writing.” agreed into
283
legislature,”
Bay
Dept.,
Packaging,
v. ILHR
Green
Inc.
(1976), and that a
2d
422
Wis.
N.W.2d
interpreting
favor a con-
“cardinal rule in
statutes”
purpose
the statute
struction which will fulfill
object
a construction which defeats the
over
manifest
Baum,
Asso.,
of the act. Student
U. Wis.-Milw.
283, 294-95,
(1976).
one
2d
Wis.
N.W.2d
Where
*19
interpretations
possible, the
of several
of
statute
a
is
legislative intention from the
court must ascertain the
scope,
language
context,
its
of the statute in relation to
accomplished.
history,
object
State
and
intended
be
Skow,
v.
rel. First
Racine
ex
Nat. Bank & Trust Co. of
773,
(1979).
779,
91
2d
The instant from the case differs legislature scienter to intended the issue of whether case, the crime, an in that in usual element statutory as to ele- of the crime silent definition bar, In at as the state ment of scienter.6 the case legislature specifically in- majority acknowledge, the offense; scienter in the definition of cludes scienter required 100.- type violation for at least one in- 26(3), namely prove defendant must that a the state regulation. in the tentionally obey While refuses to urges the ele- not to read court usual case the state this silent as a statute which is ment of scienter into urges to read rea, us this case the state mens in committing crime, ways statute to create three in requires proof The state is scienter. one which portion out of a asking read scienter effect the court to of the statute. suggest that courts commentators
The cases and deciding following whether stat- in factors consider as ele- requiring scienter interpreted as ute should liability fault: imposing without ment of the crime or 6 581 473, 480, 255 Collova, N.W.2d See, 2d e.g., 79 Wis. State (1977).
284 language
1. The of the statute. legislative
2. history The of the statute. 3. penalty. The seriousness of the purpose 4. The of the statute. practical
5.
requirements
The
of effective law en-
forcement.7
7
see,
liability
rea,
For a discussion of
fault
without
and mens
e.g.,
Scott,
31,
Criminal Law secs.
(1972);
LaFave &
47
Hall,
Principles
General
(2d
1960);
Criminal Law
XCh.
ed.
Law,
Perkins on
(2d
Criminal
1969) ;
Sayre,
Public
799-809
ed.
Offenses,
Igno
(1933); Perkins,
33
L.
Colum.
Rev. 55
Welfare
rance and
Law,
Mistake in Criminal
88 U. of Pa. L. Rev. 35
(1939); Remington
Halstead,
The Mental
Element
Crime —A
&
Legislative
Problem,
Remington, Liability
644;
1952
L.Wis.
Rev.
Major
Fault
Without
Criminal Statutes —Their Relation to
Devel
opments
Contemporary
Policy:
Economic and
Social
Situa
Wisconsin,
Ignorance
tion in
Mis
625; Hall,
Wis.
Rev.
1956
L.
Law,
take Criminal
(1957); Mueller,
On Common
J. 1
Ind. L.
Rea,
Law
Mens
Wasserstrom,
(1958);
Rev.
Minn. L.
Liability
Law,
Criminal
Criminal
L.
Stan.
Rev.
Supreme Court,
(1960); Packer,
Rea
Mens
Su
1962 The
preme
Kadish,
107;
Some
on the Use
Court Review
Observations
*20
Enforcing
Regulations,
in
Criminal Sanctions
Economic
30 U.
of
(1963); Dubin,
Plea
Mens Rea
A
Chi. L. Rev. 423
Reconsidered:
Concept
a
Responsibility,
Due Process
Criminal
18
L.
Stan.
(1966); Cass, Ignorance
the Law: A Maxim Reex
Rev. 322
amined,
Mary
17 Wm. &
Mistake
(1976); O’Connor,
L. Rev. 671
Ignorance
Cases,
and
(1976);
Criminal
39 Modern L.
644
Rev.
Marriage
Arranging
Impossibility:
Moore,
Mistake
&
Dutile
Partners,
Between Two
(1979);
74
L.
166
Nw. U.
Rev.
Difficult
Approach
Proving Culpability:
Feinberg,
Toward a New
Mens
Proposed
Code,
Rea
The
Federal
Criminal
18
Cr.
Am.
L. Rev.
(1980) ;
Notes,
Lem—Mistake
Criminal
Law —A Valid
Case
123
Defense,
Liability
Note,
(1962);
Without
11 DePaul L. Rev. 329
Logic
Developing Concept,
Fault:
and Potential
1970 Wis. L.
Balint,
1201;
v.
(1922);
United States
United
Rev.
States v.
402
U.S.
Ehrlichman,
(D.C.
v.
(1971);
Cir.
States
United
“The is where the in- tended to draw the line which do and between offenses Liability require do not scienter. without fault has been applied Wisconsin, cited demon- as the above cases strate, dustrial state of the complex ‘regulatory criminal statutes.’ The in- century generated 20th has increased orig- regulation law, adapted criminal social inally force has designed culpable individual, to en- punish regulatory regulatory statutes. These obedience primarily protection of are with the statutes concerned public prevention interests, with of direct social and and injury. They widespread more are concerned social injurious question of in- than with the with the conduct guilt penalties culpability. im- dividual or moral generally light. posed strict rationale for usual great liability public is so statutes is that the interest imposition of care warrant absolute standard disobeying —the defendant can have no excuse arising under law. multitude of cases Because of the statutes, simple regulatory quick, is a need for these there subjective in- unhindered examinations trials tent of each defendant. prin- explicit, of the is not one the statute “[W]here question ciple wheth- indexes courts consider on the [sic] severity knowledge required is
er some element penalty involved.” determining legislative analyzing In intent and in above, key principle is that “the five factors outlined exception the rule than element of rather scienter Barker, (D.C. 1976); Cir. v. United States 514 F.2d Holdridge States, opinion); United 1975) (concurring F.2d v. Alfonsi, 469, 476, (8th 1960); 2d State 33 Wis. Cir. *21 N,W.2d State, 86, v. (1960); 656 145 129 N.W. Welch Wis. 550 Hartfiel, ; (1869). (1911) State v. 24 60Wis. 286 jurisprudence.”8 our criminal This fre- court has
quently recognized primary that ethical foundation justice system the criminal liability is that criminal premised Reviewing on individual blameworthiness. these bar, factors the context of the case at I con- weigh they heavily holding clude that in favor of legislature the necessary intended scienter ele- ment (3) of sec. 100.26 .9
Language majority concede”., the Statute. theAs reasonably intentionally the statute can be read so majority modifies might- all three verbs. The then labors ily “intentionally” modifying to limit the verb “re- “refuses,” “neglects” fuses” and to define “fails” and totally separate committing as ways three and distinct single State, 413, 428, offense. Manson v. 101 Wis. 2d 284 N.W.2d (1981). 703 There are several flaws in the majority’s analysis. First, majority defines “refuses” meaning conduct, majority’s intentional and the con- “intentionally” clusion that the word modifies “intentionally” verb “refuses” renders the word redund- Second, majority’s dictionary ant. definitions of the 8 Alfonsi, 476, 469, (1960). State v. 33 Wis. 2d N.W.2d 556 147 States, 494, (1951). See also Dennis v. United U.S. construing “In a statute the court should not hold that it dis- penses necessity with in- for a criminal intent unless such an part legislature beyond tent on is clear reasonable (9th Marshall, Crimes, p. doubt.” Clark & ed. secs. 1967). majority’s legislative discussion of intent raises numerous problems specifically and difficulties not dealt with in text of example, majority gratuitously interprets this dissent. For ap 1979-80, among interpretations, sec. other Stats. pears equate “wilfully” gra “intentionally.” It adverbs tuitously equates interprets 1979-80, 947.15, Stats. “neglect” “negleet.” sponte verb with noun also sua It charges questions prosecutions about in future raises and answers State, jury unanimity and the need for under Manson Wis. (1981). 413, 304 2d N.W.2d 729 *22 neglect especially of the definitions three verbs —and meanings the verbs the of three fail —demonstrate that totally overlap. Third, the in fact are not different and legislature set majority the intended to intimates that degrees range range and wide forth a of of scienter full Supra, penalties. of Thus element 268. the-mriental p. ranges proved conduct from intentional which negligent (“ne- (“intentionally refuses”), conduct equivalent glects” majority of which the the intimates is (“fails” negligence)10 which fault to conduct without say majority parts opinion appears its the in some of element.) majority requires proof any of no mental legislature the trial the intended seems conclude that range penalties from of on court to select the wide charged thereof, degree scienter, lack of or basis leg- Although Supra, p. proven in or case. 277. each language of express concept failed to this islature creating the statute as statute, the court reads degrees scienter) ways varying (of separate three single committing a crime.11 history Although legislative
Legislative History. proper con- provide not answer to the does a definitive legisla- statute, point it struction does toward intending of the crime. to be an element ture scienter original majority points out, 1921 version As the indicating 100.26(3) not words sec. does include legisla- In 1923 the is an element the crime. scienter adding 100.26(3), specifically the ele- ture revised sec. (Ct. Balestrieri, 1, 7, 2d N.W.2d 269 87 Wis. See State court, N.W.2d 579 App. 1978), divided 96 Wis. aff’d 2d (1980). 1 1 legislature 100.26(3) Compare statutes in with which sec. degrees provide penalties expressly for different different does “Any person violat See, e.g., 1979: Stats. scienter. subject D forfeiture. Class ing 948.04, or 948.11 is 948.10 s. intentionally negligently the aforemen violates Any person who guilty Class B misdemeanor.” of a section tioned
ment “wilfully of scienter. The 1928 statute reads vio- refuses, neglects lates obey any or fails to order or regulation.” question The 1923 statute raises the same case, namely signifying in this raised whether the word mind, “wilfully,” only once, state of i.e. used which is *23 modifies each of the verbs. The 1923 statute can be read penalize: to
(A) wilfully any order, One who violates re- one who obey any order, neglects any obey to one who to fuses order, obey order; any and one who to fails
(B) order, wilfully any One who violates wil- one who fully obey order, any neglects wilfully to one who refuses obey any order, wilfully to obey any or one who fails order.
Although suggests the state’s brief that the statute punish can be read to
(C)
wilfully
One who
violates
order or one who
wilfully
obey any
neglects
order
one who
refuses
obey any
obey any order,
order or one who
fails
argument
acknowledged
the state at oral
properly
that
reading
plausible.
this
is not
100.26(3)
In 1935,
amended,
legisla-
was
but the
history
tive
shows that the revision was not
intended
change
meaning
phrase
of the statute.12
“wil-
The
fully
neglects
refuses,
violates or
obey any
or fails to
or-
regulation”
der or
replaced by
was eliminated and
Drafting
Note to the 1935 amendment
states
that no
change
meaning
100.26(3)
was intended when sec.
revised
was
part
of the 1935 revision and codification of the
admin
statutes
department
agriculture.
istered
Senate Bill
No.
Sess., states:
“This bill is
revision and codification of the stat
department
agriculture
utes
administered
and markets.
rewriting
present
. . . The bill is a
of the
with
no
law
almost
changes
changes
language
simplifica-
in
in
substance. The
are for
appended
change
tion
A
and clarification.
note
wherever the
language may
changed
meaning.”
ap-
have
No such note is
pended to sec.
Stats. Thus the 1935 statute
should
Corp.,
read as was the 1923 statute. Guse v.
Smith
A.O.
260 Wis.
403, 406,
(1952).
legislature deliberately away moved from the 1921 stat- ute which was requiring silent as to scienter to a statute express scienter. This addition of the element of scienter easily in 1923 is understood when we remember ad- regulations published ministrative were not in one con- venient, sufficiently accessible book and thus were “not known” and sufficiently were “not available.” 1940 Wis. (Red Admin. Code Book), Introduction. Under these legislature likely it circumstances the intended that only regulations wilful of the violations be crimes.
Severity Penalty. the principal One of the indices legislature courts consider to determine whether the in- require severity tended to penalty scienter is the of the Collova, 473, 485, involved. State v. 79 Wis. 2d 255 N.W. (1977). imposed 2d 581 Penalties on the basis of strict liability “commonly relatively small and conviction grave damage reputation.” Mo
does no to an offender’s States, (1922). See rissette v. United U.S. (9th Brown, also United States v. 578 F.2d 1978). Cir. potential penalty
In the instant the maximum case relatively severe in context of criminal sanctions. the impris- one-year penalty 100.26(3) up under sec. to— $5,000, county jail in the or a fine from onment $25 impris- more least as to term of both —is severe —at the highest penalty the the classification onment —than for penalty criminal misdemeanors in the code. The a fine criminal code is A misdemeanor under the Class county $10,000 imprisonment in the not to exceed jail not to exceed nine months or both.13 majority would look not
The state have us at the pen- penalty possible minimum maximum but at the allowable, majority apparently alty reasons that and the legislature range penalties illustrates degrees meant the statute include various of scienter. way majority opinion can that it con- One be read is severity any problem by of the cludes that caused exercising prosecutors sentence is cured discre- selecting persons prosecution charging tion in appropriate degree scienter, the trial courts exercising imposing- penalties discretion the severest culpably. on those who acted most This solution is satisfactory; merely dispenses not with the solution safeguards of a trial on the critical issue of blameworthi- charged ness. The this case with and defendants were “failing” obey regulations, convicted least culpable reasoning majority. behavior under the *25 one-year Yet the defendants were to terms of sentenced charge, imprisonment on each several to be served con- damage property include crimes A misdemeanors Class require person, appear and A misdemeanors most Class and See, 943.395, e.g., 943.41, an element the crime. secs. scienter 941.01, 941.10, 941.20, 941.13, 941.22, 943.50, 943.61, 940.19, 1979-80. Stats. recognize
secutively. pre- I had the defendants been charged involving viously property improve- with crimes present was sentences ments that execution of the stayed pending probation. Nevertheless, if de- either probation, fendant violates one of the numerous terms lengthy period imprisonment subject on he will to a liability” conviction of “strict offenses. my view, at
In a determinative factor in the case bar legis- severity penalty. I is the do not believe subject- person who is to be lature intended a blameless 100.26(3) It consequences imposes. sec. ed to the harsh person thing accept the idea that a blameless is one might occasionally required quite pay a fine year spending speak person a of a blameless another county jail. in position that when-
The Model Penal Code takes the punishable imprisonment, the statute ever conduct is proved. require Penal scienter to be The Model should li- on or strict announces “a frontal attack absolute Code pos- law, ability penal whenever the offense carries sibility imprisonment.” Model Penal Code of sentence of 2.05, Comment, (Tent. pp. No. 140-146 Draft resting li- 1955). a conviction on strict Under the Code monetary ability may penalty in a civil for- result position Mo- rationale for the taken feiture. The explained del as follows: Penal Code a frontal on “This section makes attack absolute liability law, penal car- whenever offense strict ries a imprisonment. The possibility of sentence abrogate liability pro- such but to method used is not to vide grade upon that basis the that when conviction rests violation, which is not is reduced to the offense 1.04(5) result and 6.02 “crime” and under Sections fine and forfeiture than a fine or in no other sentence culpable hand, If, penalty. on the other civil other established, re- the offense has been commission of however, Negligence is, grade not occur. does duction culpability this kind. in cases of treated as sufficient *26 position respect with of- “This is affirmed not Code; superimposed fenses the Penal on defined it is penal corpus law, the of the far as entire involved. Since so sanctions liability most in- strict offenses are special, regulatory legislation, superimposi- volved in this problem tion is have no doubt that made. The liabilities involved are indefensible in if the to be essential is attacked. We attempt the is one that bé should prin- ciple, unless reduced to terms that insulate conviction type ought from the to moral condemnation that is and implicit imprisonment may when sentence of imposed. culpability, In the absence of minimal law incapacita- has neither a deterrent nor corrective nor an tive function to perform. argument undoubtedly argued, “It has been and the repeated, liability necessary will be enforcement that absolute for number of the areas where it obtains. practical But if gate enforcement can not undertake liti- culpability alleged legal from re- deviation quirements, demand rightly we do not see how enforcers can penal purpose. the use for sanctions Crime does and should mean condemnation and no court pass judgment should have unless it can declare wrong. that mental act defendant’s was This is too funda- g’oes compromised. enough to be The law far if permits imposition monetary it penalty of a in cases liability imposed. where strict has been . . .” Model 2.05, Comment, Penal Code p. (Tent. sec. Draft No. 4,1955).14 14 The Model Code Penal further concludes that sanctions regulations, violations of administrative in contrast to sanctions statutes, primarily violations should be administrative character, e.g. suspension license, penalties financial or short imprisonment knowing repeated terms of in case of violations. (Tent. Model 2, p. See sec. Penal Code 206.04 Draft No. (1954)). inappropriateness
Professor Packer commented on of the criminal sanction in the absence of as scienter follows: punish conduct without “[To] reference to the actor’s state unjust. mind is both inefficacious and It inefficacious because unaccompanied making conduct of the it awareness factors criminal subjected does not mark actor as one who needs to be punishment behaving order deter him or others from similarly future, single nor socially does it him out dan- severity penalty support lends to the view legislature 100.26(3) did not intend to be *27 every prosecuting used as the basis for unintended viola- regulation regardless of tion a An fault. “unintention- major public injury. al” violation works no Of course persistent regulations stopped, violations of the must be penal imposed by 100.26(3) and the are sanctions appropriate (or negligent) for deliberate even defiance regulations. persist- evasion of the Where there are quite prove, ent violations it is feasible to whether direct- ly circumstantially, culpability. some level of
Purpose
Collova, supra,
the Statute.
In State
79
v.
486,
legis-
inquiry
Wis. 2d at
said that
we
as to the
required,
lative intent of whether scienter
is
“reduced
simplest terms, may
to its
stated
be whether
appears
designed
punish
statute
on balance to be
wrongdoers
implement
high
or to
a
on
standard of care
part
legislature’s goal
public.”
of the
is
When
primarily
regulate,
accomplish
good,
a social
to ob-
high
care, proof
tain a
standard of
of a criminal state of
mind is eliminated to
achieve
desired result.
development
regulatory
criminal statutes which
require scienter, creating
do not
what has
known
become
public
offenses,
welfare
has been described in num
prior
See, e.g.,
erous
States,
cases.
Morissette v. United
;
(1952)
342 US
259-260
Hartfiel,
State v.
24 Wis
(1869) ;
60
v. Dried
Co-Operative,
State
Milk Products
357, 362,
(1962) ;
16 Wis. 2d
294
public welfare offenses and other crimes.15 Neverthe
concept
less if we are to retain the
that certain offenses
punishable
scienter,
proof
as crimes
without
apply
we should
we have set forth in
indices which
previous
distinguish public
cases to
welfare offenses
purpose
from
index
stat
other crimes. One
is the
purpose
enacting public
ute. The
is to
welfare offenses
general
protect
safety, health,
public
morals and
wel
“
legisla
larger good,
fare.
‘In the interest of the
[such
acting
upon
person
puts
hazard
the burden
at
tion]
standing
responsible
relation to
otherwise innocent but
”
States,
danger.’
v.
public
Morissette
United
342
U.S.
(1952).
City
also
West Allis v.
259-260
See
545, 548,
;
Megna,
(1963)
2d
Although purpose 100.20, pursuant one of sec. to which regulations issued, in the case at im- bar were is to plement high public’s standard in of care inter- protecting competition, of est I conclude that an purpose 100.20, primary additional of sec. and purpose regulations in the case at and of bar 100.26(3), punish wrongdoers. pri- sec. If the mary purpose 100.26(3) wrong- of punish sec. is to 1 5 purpose “All criminal enactments in a sense serve double singling wrongdoers of purpose- punishment out for the of or cor regulating impor rection and of the social order. But often the outweighs tance primarily of the one far Crimes created other. purpose singling wrongdoers punish for of out for individual commonly rea; ment requiring po or correction are the ones mens merely regulatory lice frequently offenses of a nature are enforce irrespective any guilty Sayre, able of intent.” Public Welfare Of fenses, 55, (1933). 33 Colum. L. Rev. 72 Professor Kadish commented that “the distinction between of- regulate penalize fenses that and those that in the traditional inadequate proves Kadish, sense divide the waters.” Some Ob- Enforcing servations on the in Use Criminal Sanctions Econom- Regulations, 423, (1963). ic 30 of Chi. L. U. Rev. doers, legislature must intended that scienter have in sec. the criminal offense forth be an element of set 100.26(3). I rea- reach these conclusions several sons. generally imposed
First, liability on been strict has engage people in who acts which and of themselves engage people in unusual or not innocent or on who regulated reasonably highly may activities and who government regulations. held to know and conform Such is not here. the case liability
Unlike the usual statutes which affect strict special, highly regulated such as businesses or activities drugs, intoxicating liquors, firearms, 100.20 sec. regulations 100.20, adopted the violation under sec. Stats., penalized af- under of which are sec. There potentially people all in the state. fect business regulations pages appear chapters to be and 79 code, which constitute violations of the administrative 100.26(3). provisions cover crimes under These products. The comments multitude businesses Jeffries, Attorney D. Assistant General James Wisconsin Against article Protection entitled Consumers Deceptive Marq. Business, L. Rev. Unfair Ag (1974), point. noted that illustrate this Jeffries Code, Comparison Adm. ch. Wis. entitled “Price Advertising”, complex . “is one of the . . most rules Agriculture. Department . . . also [and] every far-reaching virtually prove to be the most since engages price comparison form of adver- seller some *29 tising.” majority legislature when that
Thus decides proved not intend did that scienter be violations ignores regulations, improvement it the fact that home governs regulations its decision violations not improvement regulations of home contracts but also of govern engaged potentially every person in almost which I in this find it hard to be- trade business state. legislature lieve that intended criminal sanctions ranging year imprisonment up $5,000 fine one to a imposed person on each business the state who be comply without fault fails to with one of the multitude regulations 100.20, adopted under administrative sec. Stats. regulations
Second, improvement most of the home misrepresentations deal with false statements and prescribe supplementary thus offenses which are to and larceny, false extensions common law crimes of pretences regulations purpose and cheat. The these prevent unscrupulous, practices fraudulent business Many regula which harm individual consumers. other adopted pursuant tions 100.20 have a similar Agri purpose. apparent Department It is culture, interpret Trade and Consumer Protection has regulations protect ed pock sec. 100.20 to authorize regulations et book of the individual consumer. These primarily expand statutory property common-law and offenses; they primarily safety protect public not do physical or the welfare or economic order of the com munity. regulations Ag (as Because the ch. 110 regulations) proscribe large well part as other vari larceny offense, prop ants of the classic a traditional erty protecting private property, offense individual ordinarily because scienter is an element of an of such law, States, fense at common Morissette United legislature (1952), U.S. 255-256 I conclude 100.26(3).17 intended to be an element of sec. scienter particular regulations here, requiring The two in issue one performance according requiring the to the contract and the second provisions, written contract to contain certain viewed “regulatory” “housekeeping”—in nature, rather than definitions — transactions. These two of substant5”e criminal fraud in business jwever regulation in the enforcement of the “business fraud aid regulations.” pro majority’s conclusion that if the consumer 100.26(3) legislature in- to be tected the must have intended sec. *30 explained fully legislature Third, below, as is more the provided a of multitude civil remedies for violation regulation 100.20 in of or in issued under sec. lieu ad- prosecution 100.26(3). dition to criminal under sec. leg- The of civil multitude remedies indicates the prosecution islature intended criminal be used to punish only “intentional” offenses. primary goal 100.26(3)
Because the see. is to legislature punish offender, I the conclude that in- the tended scienter to be an element of the crime. larger the law. the
Effective enforcement of prosecutions expected required number of to enforce law, likely legislature impose the more meant to liability fault; expected without the fewer re- quired prosecutions, likely legislature the more meant prosecutor prove Scott, scienter. LeFave Crimi- & p. (1972). nal Law legislature envisage large did not number of prosecutions 100.26(3)
criminal under sec. which had Quick quickly processed. to be criminal unhin- trials by proof dered of scienter are not needed for effective regulations. enforcement of sec. 100.20 or The Wis- legislature consin has enacted a multitude civil ad- judicial ministrative depart- remedies to enable the ment agriculture, protection, trade and consumer department justice, attorneys the district and the in- terpreted requiring proof supported by as not scienter is not legislative expressly intent other stated in consumer statutes. The (chs. 421-427, 1979-80) designed Wisconsin consumer act Stats. protect against unfair, deceptive, false, misleading “to consumers practices by and unconscionable A merchants.” criminal sanction provided for violation of chs. 421-427. The sanction is limited to (not imprisonment may $2,000); imposed. fine than more no imposed only proof “wilfully And fine actor on knowingly practice engages conduct or in violation 425.401, 421 to .” 427 .. . Sec. Stats. 1979-80. chs. *31 practices
jured parties stop prohibited to af- and to the injured parties. ford relief to the following provisions are remedies for violations of regulations prose- in lieu or in addition to criminal of 100.26(3) under : cution sec. Stats., department
(1) of 100.20(3), Sec. enables the agriculture, protection, public and after trade consumer hearing, special order, enjoining person from a a to issue employing prac- competition or unfair methods of trade requiring employ tices, person fair methods or practices. and Stats.,
(2) 100.20(4), department of Under sec. justice may complaint department with the file a written alleging protection, agriculture, of trade and consumer practices competi- of that unfair trade or unfair methods persons. The employed tion have been certain named department agriculture, protec- and consumer of trade required hearing tion is hold an to ad- administrative judicate alleged complaint. in matters Stats, (3) 100.24, that, upon proof provides Sec. gen- special any substantial and willful or violation bring attorney general may ac- issued, an eral order domestic, foreign enjoin any corporation, or tion to doing revoke in the or cancel or from business state authority, incorporation. its or certificate of Any attorney department justice (4) district or the may, pursuant Stats., to sec. commence for- in the name of the state to recover civil action $10,000 more of not less than nor than feiture $100 100.20. violation of an order issued under sec. agriculture, (5) con- department trade may request protection to re- the circuit court sumer injunction permanent temporary the viola- strain or general any special tion or order under issued entry judgment 100.20, prior the court of final any person pécuni- restore its discretion ary practices loss suffered because of the acts (6), contractor. See sec. 100.20 Stats. legal
(6) 100.20(5), Stats., provides private Sec. remedy injured person pecuniary to the of twice the together loss, fees, attorney’s with costs and reasonable general special violations orders. weapons With this arsenal of available to the state injured argu- party against violator, requiring proof ment scienter crim- prosecutions imposes inal severe difficulties enforce- regulations persuasive ment of the statute and is not Further, agencies the instant case. administrative give warning ordinarily to violators before criminal prosecution instituted, prosecution criminal *32 generally agen- by not undertaken an administrative cy penalize to catch those who are faultless but wilfully Remington those who the violate law. & Zick, Statutes, Liability Without Fault Criminal 1956 625, normally L.Wis. Rev. 653. Therefore the violators prosecuted specifically chosen to where those some relatively proven easily level of could be scienter because repeated appears violations. The violator in this case category. Consequently, to fall within this I conclude legislature impose the that intended the crimi- severe penalty possible 100.26(3) only nal under sec. on those regulation. “intentionally” who violate a forth, legis- the I For reasons set conclude that intentionally lature intended that the word 100.- sec. modify neglects 26(3) refuses, the verbs and fails.
y h-i —i question The second one not discussed —and parties majority saying or the what meant is —is 100.26(3) provides liability,” is, for “strict that defendant can be convicted even in the absence of fault. notes, regulation As one commentator each criminal 300 respects it is in what
“must examined to determine ” Liability Wasserstrom, in the Criminal ‘strict.’ Strict 731, Law, (1960). L. Some of 12 Stan. Rev. scienter, regulations do seem to include an element of regulations provide for defenses. of the do some 231, Clausen, 313 N.W.2d State v. 105 Wis. 2d See (1982) (filed 1982). Jan. opinion it majority on what it means when waffles 100.26(3) encompasses
apparently an holds that sec. liability” crime as a “strict crime. “intentional” as well concluding “intentionally carefully After cannot goes modify p. 269), majority (swpra, opinion fails” always ele- suggest an on to that nevertheless scienter offense, wrongdoing punished saying ment “the of the ‘failure,’ ‘neglect’ all either ‘intentional refusal’ implied suggest varying degrees, direct or which of knowledge wrongdoing.” Swpra, p. 277. of a “intentionally” “fails,” I have If word modifies “intentionally” mean. concluded, issue is what does recently in Supreme Court observed As States United 624, Bailey, United U.S. S. Ct. States pose dif- (1980), more “few of criminal law areas ficulty proper mens rea re- than the definition particular lia- quired Just as “strict crime.” bility” may meanings, especially when have different regulations actors, cover multitude of acts meanings. “intentionally” may I word have different *33 suggest “intentionally” present that word “wilfully” statute is used much as word was used (3). in the 1923 version of sec. 100.26 recently pointed out One commentator that there are meaning scope seven of at least variations and regulatory corporate the term wilful federal areas: knowledge “(1) illegality, or an intent to further objective illegal; known to be
301 “ (2) “ (3) negligence legality; as recklessness legality; as to “ (4) objective, knowledge immorality— immoral or intent,’ wrong- purpose,’ as ‘bad ‘evil ‘conscious such doing’ ; “ (5) injure; intent to defraud or “(6) knowledge ordinary respect intent or with offense; elements “(7) respect ordinary recklessness with elements Approach Feinberg, offense.” Toward a New Proving Culpability: Proposed Mens Rea and The Fed- Code, (1980). eral 123, Criminal 18 Am. L. Rev. 127 Cr. regulations bar,
As to at the two in issue in the case “intentionally” might interpreted the word to mean knowledge illegality illegality or or recklessness as to negligence legality. as to
III.
argues
The defendant
that
if the statute does not
require
process.
scienter
the statute violates due
majority
rejects
argument
quoting
apparently
this
at
length
liability
upheld
various cases that have
strict
recognize
many
I
has,
statutes.
that
court
have
this
courts, upheld
constitutionality
federal and state
legislative
creating
requirement
acts
crimes without a
Q.
Chicago
Ry.
States,
intent.
B. &
v.
Co. United
559,
;
(1911)
State v. Dried Milk Products
U.S.
Co-
op.,
357, 359,
(1962);
16 Wis. 2d
imprisonment and the innocently.18 posed done on acts Corp., Minerals v. Int’l & Chemical United States In regula- (1971), which involved 402 564-565 U.S. dangerous acids, the United States shipment of tion of sanc- recognized imposing criminal that Supreme Court non-dangerous concerning regulating violations tions might due requiring mens rea raise products without problems. said: process The Court regulat- clips may “Pencils, floss, paper also be dental might products type which they may be the ed. But raise substantial not Congress did questions process if due in- each Murdock, ‘mens-rea’ as to require, gredient of the offense.” the decisions from The rule to be derived dealing Supreme with scienter Court States United rea “Mens process as follows: can be stated due important requirement, it is not a constitutional but Packer, Mens Rea requirement, except sometimes.” Supreme Court, Supreme Review 1962 The Court 107.19 (1957), California, where 225 Lambert v. U.S. 18 Cf. strict-liability Supreme crim Court struck down a United States requires process grounds. play be inal statute on due Fair person subject imprisonment, person no receive fore prohibitum. Lambert fact malum In tice of the that the conduct is by being merely a convict the defendant had violated the statute registering police. in Los and not with the She had lived ed felon Angeles passive years. her status resulted Under the statute nothing register. if she not Therefore there was in a violation did violating put was a statute. on notice that she defendant (2d Mancuso, F.2d Cir. also States v.
See
United
1970).
rec
“the time
come to
Perkins has written that
has
Professor
process
ognize
a violation of due
whenever
been
there has
resulting
deprivation
liberty
property
been
there has
Perkins,
liability
upon
without fault.”
based
conviction
from a
(2d
1969).
Law 811
ed.
Criminal
Supreme
interesting analysis of recent United States
For an
question
process
regard
re-
to the
whether due
cases
Court
*35
creating
liability
strict
crimes have
While statutes
appear
upheld
to be
been
on numerous occasions there
legisla
limits,
beyond
constitutional
limits
which the
go.
ture cannot
Courts have struck down statutes creat
ing
violating
liability
process, rea
strict
crimes as
due
notice,
vague
soning that
lack
these statutes are
and
;
(1948)
Prince,
State v.
52 N.M.
Professor Packer concludes that one of the jurisprudence concerning flaws mens rea is that consistently trying have courts avoided to define the problem by employing constitutional limits of the conclusory label, “public Packer, welfare offense.” Supreme Mens Rea Court, and The Supreme 1962 The majority by Court Review tackling 149-52. The not holding constitutional issue raised its that scienter not an element of provide nothing offense does guidance legislature, litigants future or the courts. For if analyze even it is difficult the inter- quires mens rea crime, Tushnet, an element of a see Consti- tutional Limitations Substantive An Criminal Law: Examina- Meaning Mullaney tion Wilbur, B.U.L. Rev. (1975). Liability See also Saltzman, Strict Criminal and the Unit- ed States Constitution: Substantive Process, Criminal Law Due Wayne (1978). L. Rev. 271 try process,
relation this should of scienter and due court legislature’s begin any, limits, on the to define the if power a crime. to define policy summary, public
In this state is liability statutes, mens strict rea is the rule in criminal exception. 100.26(3) heavy penalty imposes a Sec. stigma de- and a The rules of the serious on violator. protection partment agriculture, trade and consumer special expanded under from six sec. 100.20 have general covering printed pages three one-half orders (the time the of the state adminis- first orders agencies volume) printed in trative were to several one *36 covering many pages chapters printed the of rules present code. I find state administrative can no counter- vailing to move to limit the word intention- factors me ally modify only to the statute “refuses” and to construe legislature liability. I as one of strict conclude that subject penalty (3) criminal intended sec. 100.26 “intentionally” department’s only those who violate pursuant 100.20. rules numerous issued Despite recognition “the this element court’s exception in crim- scienter the rule than our rather legislature’s despite express jurisprudence,” inal in- corporation of the in sec. element scienter despite majority’s concession that the statute reasonably interpreted require scienter, despite the speedy severity despite penalty and the fact that regulations enforcement of the which are extensions necessary protect law criminal fraud are not common public welfare, majority that the word concludes “intentionally” “refuses” and modifies verb require proved does not to be statute scienter analysis every prosecution. Further, the due without liability” process majority issue, the “strict holds constitutional. I dissent. statute