PUBLISHED OPINION
Case No.: 93-1898-CR
† Petition
for Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
RICHARD KNUTSON, INC.,
Defendant‑Appellant.†
Submitted on Briefs: April 18, 1995
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: JULY 26, 1995
Opinion Filed: JULY
26, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: JAMES R. KIEFFER
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented: J. Brown
Appellant
ATTORNEYSOn behalf of the defendant-appellant the cause was
submitted on the briefs of John H. Hinderaker and Ann Marie Hanrahan
of Faegre & Benson of Minneapolis.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent the cause was
submitted on the brief of James E. Doyle and Daniel J. O'Brien.
COURT OF APPEALS DECISION DATED AND RELEASED JULY
26, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 93-1898-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff‑Respondent,
v.
RICHARD
KNUTSON, INC.,
Defendant‑Appellant.
APPEAL
from a judgment of the circuit court for Waukesha County: JAMES R. KIEFFER,
Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
ANDERSON,
P.J. Principles of elementary comparative justice,
Wisconsin’s tradition of holding corporations criminally liable and persuasive
public policy considerations support our conclusion that corporations may be
prosecuted for homicide by negligent use of a vehicle. We affirm the conviction of Richard Knutson,
Inc. (RKI) holding that it is within the class of perpetrators covered by the
statute and that there was sufficient evidence presented at trial to support
the jury’s verdict.
Facts
In
the spring of 1991, RKI undertook the construction of a sanitary sewer line for
the City of Oconomowoc. On May 20,
1991, while working in an area adjacent to some Wisconsin Electric Power
Company power lines, a work crew attempted to place a section of corrugated
metal pipe in a trench in order to remove groundwater. The backhoe operator misjudged the distance
from the boom of the backhoe to the overhead power lines and did not realize he
had moved the stick of the boom into contact with the wires. In attempting to attach a chain to the
backhoe's bucket, a member of the crew was instantly electrocuted.
The
State subsequently charged RKI with negligent vehicular homicide under
§ 940.10, Stats. RKI denied the charge, disputing both the
applicability of the negligent vehicular homicide statute to corporations, as
well as the substantive allegations themselves. Prior to trial, RKI's motion to dismiss the information was
denied. The jury found RKI guilty as
charged. The trial court entered judgment,
concluding that the evidence was sufficient to support the verdict. RKI appeals.
We
initially certified this case to the Wisconsin Supreme Court pursuant to Rule 809.61, Stats. The question
the supreme court accepted for consideration was: “Whether a corporation may be prosecuted under the terms of §
940.10, Stats., which provides
that ‘[w]hoever causes the death of another human being by the negligent
operation or handling of a vehicle is guilty of a Class E felony.’”
In
a per curiam opinion, the supreme court announced that it was equally divided
on whether to affirm or reverse the judgment of conviction. State v. Richard Knutson, Inc.,
191 Wis.2d 395, 396, 528 N.W.2d 430, 431 (1995) (per curiam). The supreme court concluded that in the
interest of justice it would vacate its decision to accept the appeal on
certification and return the case to this court for our consideration. Id.
Construction of Homicide Statute
RKI
raises the same challenges to § 940.10, Stats.,
—homicide by negligent operation of a vehicle statute—as it did in the trial
court. The trial court held that
§ 940.10 covered acts by corporations.
Reasoning from a series of decisions, including Vulcan Last Co. v.
State, 194 Wis. 636, 644, 217 N.W. 412, 415 (1928), the trial court
quoted Vulcan Last when it concluded, “‘Prima facie,’ the
word ‘person,’ in a penal statute which is intended to inhibit an act, means
‘person in law’; that is, an artificial, as well as a natural, person, and
therefore includes corporations, if they are within the spirit and purpose of
the statute.” The trial court decided
that corporate liability was within the spirit of § 940.10, stating, “The
purpose of the statute is to protect employees or anyone from the negligent
conduct of another which may cause death.
It should not matter that the ‘another’ is a person or corporation as
long as the conduct is criminal ¼.”
On
appeal, RKI insists that a corporation cannot be held accountable for
homicide. RKI argues that “[t]he
statute uses the word ‘whoever’ and the correlative phrase ‘another
human being.’ In the context of this
sentence, ‘whoever’ necessarily refers to a human being. By its own terms, the statute therefore limits
culpability for homicide by operation of a vehicle to natural persons.” RKI contends that § 940.10, Stats., is an ambiguous penal statute
that must be interpreted in its favor under the rule of lenity.
The
State contends that the statute is unambiguous and includes corporations within
a broad class of perpetrators. Relying
on Kenosha Unified Sch. Dist. No. 1 v. Kenosha Educ. Ass’n, 70
Wis.2d 325, 332, 234 N.W.2d 311, 314 (1975), the State argues that when used in
the homicide statutes, the word “whoever” refers to natural or corporate
persons. The State reasons that either
can be liable for taking the life of “another human being.”
This
issue requires us to construe § 940.10, Stats. Because construction of a statute is a
question of law, we proceed with this undertaking independently of the trial
court. See State v.
Wilson, 170 Wis.2d 720, 722, 490 N.W.2d 48, 50 (Ct. App. 1992). Our task is to interpret the meaning of the
terms “whoever” and “another human being” within the context of the homicide statute. See State v. Hurd, 135
Wis.2d 266, 276, 400 N.W.2d 42, 46 (Ct. App. 1986). The primary goal of our interpretation of statutory words is to
ascertain and give effect to the legislature’s intent, and our first resort is
to the language of the statute itself. State
v. Rognrud, 156 Wis.2d 783, 787-88, 457 N.W.2d 573, 575 (Ct. App.
1990). If the statutory language is of
uncertain meaning, we will then refer to the canons of statutory construction
and consider the scope, history, context, subject matter and object of the
statute in order to discover legislative intent.[1] See Wilson v. Waukesha County,
157 Wis.2d 790, 795, 460 N.W.2d 830, 832-33 (Ct. App. 1990).
A
statute is ambiguous when it is capable of being interpreted in two or more
ways by reasonably well-informed persons.
Id. at 795, 460 N.W.2d at 833. An ambiguity does not exist merely because the parties disagree
on a statute’s meaning. Holy
Family Catholic Congregation v. Stubenrauch Assocs., Inc., 136 Wis.2d
515, 521, 402 N.W.2d 382, 385 (Ct. App. 1987).
We must examine the language of the statute to decide if the parties’
different views are warranted. Id.
Here,
the statute does not provide a definition of “whoever.”[2] See § 940.10, Stats.
It is left to the reader to determine if “whoever” should be read
expansively to include natural and artificial persons, or should be read
narrowly and have its definition gleaned from its reference to the correlative
phrase “another human being.” See
id. We conclude that
because reasonably well-informed persons could differ as to who might be a
perpetrator, the statute is ambiguous.
We
will thus employ extrinsic aids to uncover the legislature’s intent. RKI reminds us of the rule of lenity; under
this rule we are required to construe all penal statutes strictly in favor of
the defendant. See State
v. Olson, 106 Wis.2d 572, 585, 317 N.W.2d 448, 454 (1982). However, it is also a canon of statutory
construction that “[c]onstruction of ambiguous legislation is made in light of
the evil sought to be remedied.” State
v. Timm, 163 Wis.2d 894, 899, 472 N.W.2d 593, 595 (Ct. App. 1991).
Where a penalty is involved it has been said that while
such statute must be construed with such strictness as carefully to safeguard
the rights of the defendant and at the same time preserve the obvious intention
of the legislature, the rule of strict construction is not violated by taking
the common-sense view of the statute as a whole and giving effect to the object
of the legislature, if a reasonable construction of the words permits it.
Zarnott v. Timken-Detroit Axle Co., 244 Wis. 596, 600, 13 N.W.2d 53, 54 (1944).
The
rule of lenity does not require us to give § 940.10, Stats., the narrowest possible construction where to do so
would be inconsistent with the legislature’s intent. See Zarnott, 244 Wis. at 600, 13 N.W.2d at
54. The primary goal of statutory construction
is to carry out the legislature’s intent; the tools of statutory construction,
including the rule of lenity, cannot be used in disregard of the purpose of the
statute. See State v.
Hopkins, 168 Wis.2d 802, 814, 484 N.W.2d 549, 554 (1992). In this process, sometimes a strict
construction and sometimes a liberal construction of a penal statute are
required to carry out the legislative purpose.[3] Id.
Professor
James Willard Hurst provides guidance.
First, he suggests that the very nature of today’s society makes it
impossible for the members of the legislature to forecast “the particular
condition or set of facts to which someone now suggests applying the
statute.” James W. Hurst, Dealing with Statutes 35 (1982). According to Hurst, the legislators may well
have supplied “sufficient specifications to provide a discernible frame of
reference within which the situation now presented quite clearly fits, even
though it represents in some degree a new condition of affairs unknown to the
lawmakers.” Id.
Second,
he submits that “as a vital element in the community’s life a statute is more
than the text we find in the statute book.”
Id. at 41. Hurst
argues that the text under judicial analysis gains its vitality from its past
“—from the prior state of the law and the shortcomings of that state of
law”—and from its future “—from what those charged with applying it do to give
it force, not only to promote its objectives but to overcome contrivances to
evade its mandates.” Id.
Finally,
Hurst instructs those interpreting statutes that:
the content of public policy may grow by accretion of
statutory precedents in a fashion analogous to the growth of common law. Statutes dealing with a variety of subjects
may begin to cluster around some common value judgment. Recognizing this reality, a court is
warranted in finding evidence of legislative intent under a given act by
reference to what legislators have done regarding like subjects under other
acts.
Id. at 45.
The
homicide statute in question deals exclusively with deaths caused by negligent
operation of vehicles.[4]
940.10 Homicide by negligent operation of vehicle. Whoever
causes the death of another human being by the negligent operation or
handling of a vehicle is guilty of a Class E felony. [Emphasis added.]
Our
task is to ascertain if the legislative intent is to include corporations
within the class of perpetrators. This
task is made more difficult by the legislature’s use of the term “whoever” to
identify the perpetrator of a crime and its failure to define that term. See id. Prior to 1955, the comparable
provision of the statute encompassing homicide by negligent use of a motor
vehicle, § 340.271(2), Stats.,
1953, described the perpetrator as “any person.” The statute defined “[p]erson” to include “all partnerships,
associations and bodies politic and corporate.” Section 370.01(26), Stats.,
1953. Why, when it rewrote the criminal
code in 1955, the legislature chose to describe perpetrators with the ambiguous
term “whoever” is an enigma. See
§ 940.08, Stats., 1955.
Another
mystery is the deletion of any statutory language establishing corporate
liability for criminal acts. The
proposed 1953 version of the criminal code contained a specific provision that
held a corporation criminally liable for the acts of its agents when acting
within the scope of their authority. See
Laws of 1953, ch. 623, § 2 (proposing § 339.07, Stats., 1953). This provision was deleted from the 1955
formulation of the criminal code. As
explained by William A. Platz, “This
was eliminated, upon motion of an advisory committee member who was a house
counsel for a large industrial corporation, although it was conceded that the
1953 code correctly stated the rule of law and that its omission from the code
would not alter the rule.” William A.
Platz, The Criminal Code, 1956 Wis.
L. Rev. 350, 362-63 (footnote
omitted).
Prior
to adoption of Wisconsin’s 1955 criminal code, a corporation could be held
criminally liable. See Vulcan
Last, 194 Wis. at 641-45, 217 N.W. at 414-16. Vulcan Last was an appeal from a criminal
conviction of a corporation for discharging an employee who voted against the
corporation’s request for a municipal water treatment plant. Id. at 637-38, 217 N.W. at
413. The supreme court concluded that
Wisconsin would follow modern authority and hold corporations liable for
criminal acts. Id. at
641-45, 217 N.W. at 414-16. RKI
attempts to distinguish Vulcan Last by arguing that the statute
involved described the perpetrator as a “person” defined to include
corporations.
RKI’s
attempt fails because five years later the supreme court explained that “it is
now well established that a corporation can be held guilty of crime when it is
punishable by a fine ¼.” State
ex rel. Kropf v. Gilbert, 213 Wis. 196, 212, 251 N.W. 478, 484
(1933). Kropf was a
habeas corpus case in which the petitioners-appellants were challenging the
sufficiency of the evidence at a preliminary hearing to support their being
bound over for prosecution for embezzlement.
Id. at 199-201, 251 N.W. at 479. The question was whether any of the petitioners-appellants, as
agents of a corporation, were parties to the crime of the corporation
converting or embezzling funds. Id.
at 200, 251 N.W. at 479. The answer
turned not on the description and definition of a perpetrator of embezzlement;
rather, it turned on whether the perpetrator would be punished by imprisonment
or a fine. See id.
at 212, 251 N.W. at 483-84.
We
conclude that prior to the enactment of the 1955 criminal code, the well-established
rule in Wisconsin was that if a crime was punishable, in part, by a fine, a
corporation could be criminally responsible.[5] We are satisfied that it was not the
description of the perpetrator as a “person”—defined to include
corporations—that governed corporate criminal liability.
We
find it significant that in 1955 the legislature did not seek to highlight
corporate criminal liability by including a provision as suggested in the 1953
proposed criminal code or by revoking the then-existing rule found in Vulcan
Last and Kropf.
The legislature’s silence is indicative of its satisfaction with the supreme
court’s interpretation of the law. As
the supreme court has written:
When determining legislative intent, this court must
assume that the legislature knew the law in effect at the time of its
actions. Moreover, we presume that the
legislature is aware that absent some kind of response this court’s
interpretation of the statute remains in effect. Legislative silence with regard to new court-made decisions
indicates legislative acquiescence in those decisions. [Citations omitted.]
State v. Olson, 175 Wis.2d 628, 641, 498 N.W.2d 661, 666 (1993).
The
legislature had another opportunity to consider the reach of the homicide
statutes in 1987 when it substantially modified ch. 940, Stats.
This consideration came after the decision in State v. Dried Milk
Prods. Co-op., 16 Wis.2d 357, 114 N.W.2d 412 (1962), which reaffirmed
the vitality of Vulcan Last:
[A] corporation acts of necessity through its agents
whose acts within the scope of the agent’s authority are the acts of the
corporation, both for the imposition of civil and criminal liability. Vulcan Last Co. v. State
(1928), 194 Wis. 636, 217 N.W. 412.
Dried Milk Prods., 16 Wis.2d at 361, 114 N.W.2d at 415.[6]
This
legislative inaction, in the face of repeated supreme court pronouncements that
corporations can be held liable for criminal acts, convinces us that the
legislature concurs in the supreme court’s decisions. On two separate occasions the legislature significantly revised
the homicide statutes; both times it is presumed that the legislature was aware
that court decisions have held corporations criminally liable; and on both
occasions, the legislature has elected not to undo corporate criminal
liability.
Our
conclusion conforms to the modern trend of the law. A leading treatise on corporations acknowledges that a
corporation may be held to answer for its criminal acts, including
homicide. See 10 William M. Fletcher, Fletcher Cyclopedia of
the law of Private Corporations § 4942, at 679, § 4955, at 758
(perm. ed. rev. vol. 1993). In a
discussion on enterprise liability, Wayne R. LaFave and Austin W. Scott, Jr.
begin with the premise that “it is almost universally conceded that a
corporation may be criminally liable for actions or omissions of its agents in
its behalf.” Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.10(a), at 361 (1986). The Model Penal Code also has several
provisions holding corporations accountable for criminal behavior.[7]
LaFave
and Scott summarize the persuasive policy considerations supporting corporate
criminal liability. Among those
considerations is the factor that the corporate business entity has become a
way of life in this country and the imposition of criminal liability is an
essential part of the regulatory process.
Id. § 3.10(b), at 364. Another consideration centers on the premise that it would be
unjust to single out one or more persons for criminal punishment when it is the
corporate culture that is the origin of the criminal behavior. Id. § 3.10(b), at
365. Also, the size of many corporations makes it impossible to
adequately allocate responsibility to individuals. Id. § 3.10(b), at 364-65.
An
additional consideration is the “indirect economic benefits that may accrue to
the corporation through crimes against the person. To get these economic benefits, corporate management may shortcut
expensive safety precautions, respond forcibly to strikes, or engage in criminal
anticompetitive behavior.” Granite
Constr. Co. v. Superior Court, 197 Cal. Rptr. 3, 5 (Cal. Ct. App.
1983). It has also been suggested that
the free market system cannot be depended upon to guide corporate decisions in
socially acceptable ways, and the threat of imposition of criminal liability is
needed to deter inappropriate (criminal) corporate behavior. See John Pray, State v.
Serebin: Causation and the Criminal Liability of Nursing Home
Administrators, 1986 Wis. L.
Rev. 339, 358-59.
RKI
insists that Wisconsin has disregarded the modern trend of criminal law to hold
corporations liable for criminal acts.
RKI bases its argument on the language of § 940.10, Stats.
It argues:
[T]he only fair reading of [the statute] provides that
natural persons alone can be prosecuted for violations of the statute: only “[w]hoever causes the death of another
human being” can be found guilty ¼ . Because the
statute subjects only human beings to criminal liability for negligent
vehicular homicide, RKI does not fall within the scope of [the statute].
RKI’s
argument ignores reality. A corporation
acts of necessity through its agents, see Dried Milk Prods.,
16 Wis.2d at 361, 114 N.W.2d at 415; therefore, the only way a corporation can
negligently cause the death of a human is by the act of its agent—another
human,[8] see LaFave
& Scott, supra, § 3.10(a), at 363. Reading the statute to limit its coverage to
perpetrators who are human, as suggested by RKI, skirts around the concepts of
vicarious and enterprise liability. If
a human was operating a vehicle within the scope of his or her employment when
the death occurred, RKI's construction would permit the corporation to escape
criminal prosecution simply because it is not a human being.
RKI’s
attempt to limit the class of perpetrators to natural persons ignores several
axioms. First, elementary comparative
justice demands that the same criminal liability must be imposed when two
relatively similar offenses are committed under similar circumstances. See Steven Walt and William S.
Laufer, Why Personhood Doesn’t Matter:
Corporate Criminal Liability and Sanctions, 18 Am. J. Crim. L. 263, 278 (1991).[9] Second, “it is not in virtue of being a
person that criminal liability attaches.
It is in virtue of possessing the complex relational property of causing
harm—voluntarily—with a wrongful state of mind—without excuse.” Id. at 275. Third, “[f]inding moral responsibility and
criminal liability does not depend on first determining whether an entity is a
person.” Id. at 276. We agree with Walt and Laufer that:
Determining
the ontological status of the corporation is unnecessary. For the assignment of
corporate criminal liability does not require that determination. Corporations can be held criminally liable
without deciding whether they are persons.
Indeed, their status as moral persons can be left open. Agnosticism on both counts is justified for
the same reason: criminal responsibility, whether of individuals or
corporations, does not take personhood into account. To be sure, judicial practice requires a finding of personhood ¼. But this is a legislatively imposed
requirement. Criminal liability can
survive without an inquiry into personhood.
Decisional law implicitly recognizes as much by considering personhood a
minor barrier to the assignment of liability.
Id. at 273-74 (footnote omitted).
Part
of RKI’s argument is premised upon a narrow definition of “whoever” that
excludes corporations. The supreme
court’s decision in Kenosha Unified Sch. Dist., 70 Wis.2d at 332,
234 N.W.2d at 314, that when the word “whoever” is used in the statute it
refers to both natural and corporate persons, appears to be the universal
construction of that term. We agree
with both Fletcher, supra,
§ 4948, at 702-03, and LaFave &
Scott, supra, § 3.10(a), at 363-64, that if a penal statute
is intended to inhibit an act, a corporation is included within the class of
perpetrators if to do so is within the spirit and purpose of the act.[10]
Sufficiency of the Evidence
RKI
argues that the evidence adduced at trial was insufficient to support its
conviction. RKI asserts that the State
failed to prove two elements of the offense: (1) that RKI was criminally
negligent, in other words, that RKI should have realized that the conduct
created a substantial and unreasonable risk of death or great bodily harm to
another; and (2) the causal connection
between RKI’s alleged criminally negligent conduct and the victim’s death.
The
test for sufficiency of the evidence is whether an appellate court can conclude
that a reasonable trier of fact could be convinced of a defendant's guilt
beyond a reasonable doubt by the evidence and reasonable inferences that it had
a right to believe and accept as true. See
State v. Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755
(1990). We follow several guidelines
during our review of the evidence.
First, evidence is to be considered in a light most favorable to the
State and the conviction. Id. Second, the credibility of the witnesses and
the resolution of conflicts in the evidence are functions exclusively reserved
for the trier of fact. See id.
at 503, 451 N.W.2d at 756.
Third, the trier of fact, within the bounds of reason, is free to reject
inferences that are consistent with the innocence of the defendant. Id.
Homicide
by negligent use of a vehicle has three elements: “(1) that the defendant cause death (2) by criminal negligence
(3) in the operation of a vehicle.”[11] Walter Dickey et al., The Importance of
Clarity in the Law of Homicide: The Wisconsin Revision, 1989 Wis. L. Rev. 1323, 1373. The
core factor of the three elements is that simple negligence is not enough to
hold an individual criminally liable. Id.
at 1376. In order for a person to face
criminal consequences for a negligent act, his or her negligence must rise to
the level of criminal negligence.[12]
Criminal negligence differs from ordinary negligence in
two respects. First, the risk is more serious—death or great bodily harm as
opposed to simple harm. Second, the risk must be more than an unreasonable
risk—it must also be substantial.
Criminal negligence involves the same degree of risk as criminal
recklessness—an unreasonable and substantial risk of death or great bodily
harm. The difference between the two is that recklessness requires that the
actor be subjectively aware of the risk, while criminal negligence requires
only that the actor should have been aware of the risk—an objective standard.
Id. at 1376-77.
We
are satisfied that the evidence and reasonable inferences flowing from the
evidence support the jury’s conclusion that RKI’s conduct created a substantial
and unreasonable risk of death or great bodily harm to its employees. See Wis J I—Criminal
1170. RKI’s job performance violated
general and specific safety requirements.
Although RKI did not violate Occupational Safety and Health Act (OSHA)
regulations governing working in the vicinity of electrical power lines, it did
violate written safety guidelines applying to this job. In addition, RKI’s contract for this
specific job required it to comply with certain safety guidelines while on
property owned by Wisconsin Electric Power Company.
The
evidence permits the reasonable inference that RKI neglected to act with due
diligence to insure the safety of its employees as they installed sewer pipes
in the vicinity of overhead electrical lines.
RKI’s management took no action to have the power lines de-energized or
barriers erected; rather, management elected to merely warn employees about the
overhead lines. A finder of fact would
be justified in reasonably inferring that RKI had ample notice that the
existence of overhead power lines would interfere with the job, and unless
there was compliance with safety regulations, working in the vicinity of the
overhead lines posed a substantial risk to its employees.
The
evidence supports the conclusion that if RKI had enforced the written safety
regulations of OSHA, had abided by its own written safety program and had
complied with the contract requirements for construction on Wisconsin
Electric’s property, the electrocution death would likely not have
happened. The finder of fact was
justified in concluding that RKI operated vehicles in close proximity to the
overhead power lines without recognizing the potential hazard to its employees
in the vicinity of the vehicles. The
jury could reasonably find that RKI’s failure to take elementary precautions
for the safety of its employees was a substantial cause of the electrocution
death.
By
the Court.—Judgment affirmed.
Recommended
for publication in the official reports.
No.
93-1898-CR(D)
BROWN,
J. (dissenting). I respectfully dissent
from the majority decision. I have no
quarrel with the general policy considerations favoring corporate criminal
liability. And it is indisputable that
past Wisconsin cases have made corporations criminally liable for the acts of
their agents. But I am convinced that those
past cases were based upon statutes with substantially different wording than
the statute in this case.
For
example, the most often cited illustration favoring corporate criminal
liability is Vulcan Last Co. v. State, 194 Wis. 636, 217 N.W. 412
(1928). The corporation desired to have
the City of Crandon install waterworks so that the plant of the company would
have fire protection. Id.
at 637, 217 N.W. at 413. An alderman
who was an employee of the company voted against the resolution. Id. at 638, 217 N.W. at
413. The plant superintendent held a
meeting of employees in which he stated that any person who voted against the
company's interest in the upcoming referendum would be discharged; moreover, the
alderman was discharged because of his vote at the council meeting. Id. Vulcan Last was charged with attempting to influence the vote of
employees by threatening discharge and was convicted. Id. at 639, 217 N.W. at 413. On appeal, one of Vulcan Last's defenses was
that, as a corporation, it could not be convicted of a crime. But the supreme court rejected the claim
based upon its reading of the statute.
The statute at issue stated in pertinent part: “No person shall, by threatening to discharge a person from his employment
¼, attempt to
influence a qualified voter ¼.” Id.
(quoting § 103.18, Stats.,
1925).
The
supreme court noted that the statute prohibited any “person” from attempting to
influence a voter in the manner prescribed.
Id. at 643, 217 N.W. at 415. The court then ruled that the word “person” in a penal statute
means “person in law.” Id.
at 644, 217 N.W. at 415. The court
reasoned that a “person in law” included artificial as well as natural
persons. Id. The court also cited a federal case for the
proposition that “when a statute in general terms prohibits the doing of an act
which can be performed by a corporation, and does not expressly exempt
corporations from its provisions, there is no reason why the statute should be
construed as not applying to them.” Id.
(quoting United States v. John Kelso Co., 86 Fed. 304, 306 (N.D.
Cal. 1898)).
Vulcan
Last therefore stands for
the proposition that when a statute refers to a “person” or “persons” as the
perpetrator, then artificial persons are subject to criminal liability. See id. It also establishes that corporations should
be held criminally responsible under a statute employing the words “person” or
“persons” unless specifically exempted.
See id.
Another
example, cited by the State, is Kenosha Unified Sch. Dist. No. 1 v.
Kenosha Educ. Ass'n, 70 Wis.2d 325, 234 N.W.2d 311 (1975). There, the court was concerned with a
statute using the word “whoever.” Id.
at 332, 234 N.W.2d at 314. The court
stated:
It
appears to be the rule that when the word “whoever” is employed in a statute,
it is considered to refer only to “persons,” whether natural or corporate,
and not to unincorporated associations.
[Emphasis added.]
Id. Thus, by extension, the Vulcan
Last rule can be said to mean that where a statute uses either
the words “person,” “persons,” or “whoever,” then artificial persons as
well as natural persons are subject to criminal liability. See id.; Vulcan
Last, 194 Wis. at 644, 217 N.W. at 415.
I
am satisfied, however, that the instant statute falls outside the Vulcan
Last rationale. Here, the
statute specifically applies to “whoever” causes the death of “another human
being” by negligent operation or handling of a vehicle. See § 940.10, Stats. Clearly, the
phrase “another human being” is a referent to the word “whoever.” See id. Thus, the pronoun “whoever” is of the same
class as its referent—another human being.
In my view, the language unambiguously confines the word “whoever” to a
natural person, not an artificial person.
I am further of the view that this language is an express determination
by the legislature that only natural persons, not artificial persons, may be
held liable under this statute.
I
am influenced by the holding in People v. Rochester Ry. & Light Co.,
88 N.E. 22 (N.Y. 1909), cited by Knutson.
The court there held that a corporation could not be indicted for
homicide where the penal code defined homicide as the “killing of one human
being by the act, procurement or omission of another.” Id. at 24. The court wrote:
We
think that this final word “another” naturally and clearly means a second or
additional member of the same kind or class alone referred to by the preceding
words, namely, another human being, and that we should not interpret it as
appellant asks us to, as meaning another “person,” which might then include
corporations ¼. It is true
that the term “person” used therein may at times include corporations, but that
is not the case here.
Id. I acknowledge that this New
York case is old, but so is the English language. What was basic syntactic analysis in 1909 would be unchanged in
1995.
Other
cases and comments cited by Knutson support my acceptance of the New York
court's rationale. In Granite
Constr. Co. v. Superior Court, 197 Cal. Rptr. 3, 4 (Cal. Ct. App.
1983), a corporation appealed a manslaughter conviction based upon a statute
explicitly defining “person” to include corporations as well as natural
persons. The court stated:
This statute does not rule out the prosecution of
corporations. ¼ [I]t does not limit itself to natural
persons by defining the act of manslaughter as the killing “of a human being ¼ by another.”
Id. at 5. Our statute employs the
language not found in the California statute.
I think this case is instructive because it explains when a statute does
or does not include corporations.
An
American Law Reports annotation also supports the New York court's
reasoning. According to the annotation:
In jurisdictions where homicide is defined
as the killing of a human being by another human being, the definition itself
seems to preclude corporate liability for the crime. However, the courts have a more difficult job of analyzing the
law in jurisdictions where “person” is used in place of “human being” in the
definition of homicide since “person” may include or exclude corporations.
Nora A. Uehlein, Annotation, Corporation's Criminal
Liability for Homicide, 45 A.L.R. 4th, 1021, 1024 (1986) (footnotes
omitted). The annotation goes on to
cite the reasoning in the New York case as support for commentary. See id. at 1029. I find all of these authorities persuasive
and would adopt them in ruling for Knutson.
The
majority opinion dismisses the grammatical distinctions between the statute
involved in this case and the statutes in cases like Vulcan Last
by concluding that it is “not the description of the perpetrator as a ‘person’”
which governs corporate liability.
Majority slip op. at 11. Rather,
it is the public policy of this state to expose corporations to criminal
liability whenever a crime is punishable by fine. See id. at 11-12. As I read the majority opinion, what it is saying is that
whenever the legislature imposes a fine as one of the alternative methods of
punishment, it automatically means to subject corporations to criminal liability
no matter what the language of the statute is.
The word “fine” is the key to corporate exposure, not any other language
of the statute.
The
majority gets this idea from its reading of State ex rel. Kropf v.
Gilbert, 213 Wis. 196, 212, 251 N.W. 478, 484 (1933). The majority cites Kropf to
say that “it is now well established that a corporation can be held guilty of
crime when it is punishable by a fine.”
See id.; majority slip op. at 10-11. But that is not what the case said. What the case really said was:
Although
it is now well established that a corporation can be held guilty of crime when
it is punishable by a fine [citing foreign jurisdictions omitted here],
it has been repeatedly held that when the only punishment prescribed for an
offense is imprisonment, which cannot in the nature of things be inflicted upon
it, no information or indictment will lie against it because the law does not
permit or require that which is futile.
Id. at 212-13, 251 N.W. at 484 (citations omitted). What the Kropf court was
saying is that while other jurisdictions have generally held that a corporation
can be held guilty of a crime when it is punishable by a fine,
Wisconsin's courts will not hold a corporation guilty if the punishment is
imprisonment. This holding is a far cry
from ruling that, in Wisconsin, corporations will be held liable if a
crime is punishable by a fine. The most
that can be said about the Kropf holding is that when a fine is a
form of punishment, it is not a futile exercise for the legislature to expose
corporations to criminal liability. In
my view, Kropf does not resolve the issue in this case; it only
begs the question, which is: Did the legislature intend to subject corporations
to criminal liability under this statute?
Compounding
its error, the majority then reasons that since the supreme court has
repeatedly held that corporations can be held liable for criminal acts, and
since the legislature's criminal code revisions remained silent about corporate
criminal liability, therefore the legislature has acquiesced in the supreme
court's pronouncements. See
majority slip op. at 13. But as I have
already pointed out, the supreme court has not made the sweeping pronouncement
claimed by the majority. The supreme court's judgments regarding corporate
liability are no more and no less than what it initially announced in Vulcan
Last. As I have pointed out,
the statute in this case differs substantially from the one in Vulcan
Last and the reasoning of Vulcan Last cannot be applied
here.[13]
The
majority admits that my use of the canons of statutory construction is
“proper,” but complains that I have neglected to consider our prerogative to
“disregard grammatical errors or mistakes in statutes in order to give effect
to the intent of the legislature.”
Majority slip op. at 18 n.10. I
am unaware, however, of any information which would lead me to believe that the
language of the instant statute is a “grammatical error[] or mistake[].” See id. The statutes were substantially modified
from the original 1955 laws in 1987 after extended study by the Judicial
Council. The Judicial Council is well
known for its scholarship and careful attention to detail. I refuse to believe that the language of the
present statute is the result of inadvertence or ignorance of the legislative
purpose.
What
this debate really comes down to is whether it is desirable that a court avoid
the literal meaning of this statute. I
acknowledge that there exists a tension between the language of the statute and
the announced public policy goal by some of our citizenry that corporations be
held to criminal liability for negligent deaths. And I reject the notion that we should never search for the
“real” rule lying behind the mere words on a printed page. But when the statute's wording is so clear
in its contextural rigidity, the statute has therefore generated an answer
which excludes otherwise eligible answers from consideration. Unlike the majority, I take the clear
wording of the statute seriously. Since
the majority has seen fit to quote Justice Oliver Wendell Holmes, Jr., I too
quote from a past justice of the nation's highest court. In United States v. Public Util.
Comm'n, 345 U.S. 295, 319 (1953) (Jackson, J., concurring), Justice
Robert Jackson wrote: “I should concur
in this result more readily if the Court could reach it by analysis of the
statute instead of by psychoanalysis of Congress.” My sentiments exactly.
[1] As Professor
James Willard Hurst comments in his book, James
W. Hurst, Dealing with Statutes
56 (1982):
[This] formula serves the proper separation of powers
principle so far as it provides a persistent reminder to those who must apply
statutes that the legislature is entitled to set the frame of public policy,
and that the text it votes into the statute books is its most positive and
deliberate exercise of that function.
[2] The statute
defines terms applicable to the homicide statutes, and important to this
decision, in two different places.
First, § 939.22(16), Stats.,
defines “[h]uman being” when used in the homicide sections to mean “one who has
been born alive.” Second,
§ 990.01(26), Stats., defines
“[p]erson” to include “all partnerships, associations and bodies politic or
corporate.”
[3] Hurst has
recognized that the emphasis of the courts is not on broad, standardized
formulas of construction, but “on custom-built determinations, fashioned out of
materials immediate and special to the legislation at issue.” Hurst,
supra note 1, at 65.
[4] Wisconsin’s
homicide statutes were enacted in their modern day form by the Laws of 1955,
ch. 696, § 1, and extensively revised in 1987 Wis. Act 399
§ 472zkcn-zkct, zkd-zkg.
[5] On at least
three separate occasions, the Wisconsin Attorney General opined that a
corporation can be held criminally liable when its conduct constitutes a
violation of a criminal statute. See
1 Op. Att'y Gen. 193
(1913); 4 Op. Att'y Gen.
240 (1915); 53 Op. Att'y Gen.
132 (1964).
[6] In State
v. Kuhn, 178 Wis.2d 428, 432, 504 N.W.2d 405, 407 (Ct. App. 1993), we
wrote that individual corporate officers are personally liable for the criminal
acts committed in the name of the corporation.
Kuhn relied upon State v. Lunz, 86 Wis.2d
695, 707, 273 N.W.2d 767, 773 (1979), for the proposition that “[s]ince a
corporation is an individual existing only in contemplation of the law, its
criminal acts are those of its officers and agents; and thus persons in control
of the corporation ¼ may be personally
prosecuted ¼.” Kuhn,
178 Wis.2d at 432, 504 N.W.2d at 407. Lunz
cites State v. Laabs, 40 Wis.2d 162, 161 N.W.2d 249 (1968), in
support of this conclusion. We do not
read these cases to support the proposition that corporations cannot be held
liable for criminal acts. First, Kuhn
and Lunz addressed corporate criminal liability in the context of
refusing to accept the appellants’ defense that she or he was acting as a
corporate officer and the corporation was the real perpetrator. See Kuhn, 178 Wis.2d at
432-33, 504 N.W.2d at 407-08; Lunz, 86 Wis.2d at 706-07, 273
N.W.2d at 773. Second, Laabs
involves the prosecution of a corporate officer for filing false financial
statements; the appellant did not raise the defense raised in the subsequent
cases; and, we are at a loss to find any discussion in the decision even
touching upon corporate criminal liability.
See Laabs, 40 Wis.2d at 165-66, 161 N.W.2d at
251. We conclude that Kuhn
and Lunz are limited to cases where an officer or agent of a
corporation is raising the defense that he or she cannot be criminally liable
for acts performed on behalf of the corporation.
[7] Among those
provisions is Model Penal Code
§ 2.07, which provides:
§ 2.07. Liability of Corporations, Unincorporated
Associations and Persons Acting, or Under a Duty to Act, in Their Behalf.
(1) A
corporation may be convicted of the commission of an offense if:
(a) the offense
is a violation or the offense is defined by a statute other than the Code in
which a legislative purpose to impose liability on corporations plainly appears
and the conduct is performed by an agent of the corporation acting in behalf of
the corporation within the scope of his office or employment, except that if
the law defining the offense designates the agents for whose conduct the
corporation is accountable or the circumstances under which it is accountable,
such provisions shall apply; or
(b) the offense
consists of an omission to discharge a specific duty of affirmative performance
imposed on corporations by law; or
(c) the
commission of the offense was authorized, requested, commanded, performed or
recklessly tolerated by the board of directors or by a high managerial agent
acting in behalf of the corporation within the scope of his office or
employment.
(2) When
absolute liability is imposed for the commission of an offense, a legislative
purpose to impose liability on a corporation shall be assumed, unless the
contrary plainly appears.
[8] Wisconsin’s
criminal jury instructions include a pattern instruction on corporate criminal
liability that recognizes that a corporation can only act through its agents.
CORPORATE LIABILITY: ACTS OF LESSER EMPLOYEES: OTHER THAN
STRICT LIABILITY CASES
(The
defendant)(One of the defendants) in this case is a Wisconsin corporation.
Under Wisconsin
law, a corporation may be held criminally liable for the acts of an agent or
employee when such agent or employee acts within the scope of his employment in
behalf of the corporation and the corporate officer or management executive
having supervisory responsibility over the subject matter of the offense failed
to use due diligence to prevent the commission of the offense.
Wis J I—Criminal 430.
[9] Steven Walt and
William S. Laufer explain Model Penal
Code § 2.07 and the changes the adopting states have made to the
suggested language of the statute. See
Steven Walt and William S. Laufer, Why Personhood Doesn’t Matter: Corporate Criminal Liability and Sanctions,
18 Am. J. Crim. L. 263, 267-68 (1991).
[10] The dissent overlooks Wisconsin's historic adherence to
“Mr. Justice Holmes' epigrammatic
direction to ‘think things rather than words.’” Peterson v. Sinclair Refining Co., 20 Wis.2d 576,
589, 123 N.W.2d 479, 486 (1963).
Although the dissent's use of the rules of grammatical construction to
limit the application of § 940.10, Stats.,
to “persons born alive” is proper application of some of the canons of
statutory construction, it does not go far enough. The dissent neglects to consider the prerogative of the courts to
disregard grammatical errors or mistakes in statutes in order to give effect to
the intent of the legislature. See
State ex rel. Gutbrod v. Wolke, 49 Wis.2d 736, 743 n.7, 183
N.W.2d 161, 165 (1971). “In other
words, if the legislative intent is clear, it must be given effect regardless
of inaccuracies of language ¼.” Id. at 744 n.7, 183 N.W.2d at
165 (quoted source omitted).
Where there are no other clues to use to
discover the legislature's intent, it is appropriate to resort to the rules of
grammar. But the employment of the
rules of grammar is:
dependent upon the reasonableness of the interpretation
in terms of the subject matter of the statute and whether the interpretation
dictated by these ossified rules of construction reaches a workable
result. An interpretation reached by
relying upon a rule of grammatical construction cannot stand in the face of a
conflict revealed in the subject matter under consideration.
Dittner v. Town of Spencer, 55 Wis.2d 707, 711, 201 N.W.2d 45, 47 (1972).
We are
satisfied that the history of corporate criminal liability in Wisconsin
prescribes the results reached. The
construction of § 940.10, Stats.,
to include corporations is consistent with public policy and practice. In reaching this conclusion, we are
cognizant of Justice Holmes' observation that, “A word is not a crystal,
transparent and unchanged, it is the skin of a living thought and may vary
greatly in color and content according to the circumstances and the time in
which it is used.” Towne v.
Eisner, 245 U.S. 418, 425 (1918).
[11] Wis J I—Criminal 1170 defines
the three elements in the following manner:
“First, that the defendant operated a vehicle. Second, that the defendant operated a vehicle in a manner
constituting criminal negligence.
Third, that such criminal negligence on the part of the defendant caused
the death of [the victim.]”
[12] Of course, by
necessity a corporation can only act through its employees, agents or officers;
therefore, it is the negligence of the employee that must rise to the level of
criminal negligence. See State v.
Dried Milk Prods. Coop., 16 Wis.2d 357, 361, 114 N.W.2d 412, 415
(1962). In this case, the trial court
did instruct the jury on the concepts of corporate vicarious liability using Wis J I—Criminal 430, “Corporate Liability: Acts of Lesser Employees:
Other than Strict Liability Cases.”
[13] The State argues
that the language reflects the legislature's intent to distinguish homicide
from suicide. Thus, a person who
negligently kills himself or herself cannot be convicted under the
statute. The State seemingly posits
that this is because the statute should be read to restrict homicide to the
killing of “any person except the actor.”
I acknowledge that in old Europe, a person could be “condemn[ed] ¼ to death for the crime of having [committed
suicide.]” A. Alvarez, The Savage God:
A Study of Suicide, 46 (1972).
In France, for example, the corpse was hanged by the feet, dragged
through the streets, burned and thrown on a public garbage heap. Id. The French came to their senses in 1791 when the new penal code
did not mention suicide. Id.
at 48. The State's argument appears to
be that the legislature thought it necessary to exempt suicides from the
criminal statutes. I give the Wisconsin
legislature more credit. I think the
State's argument is rather remarkable in its attempt to visit this legal idiocy
on our legislature. The State cites a
draft of the 1950 Legislative Council that spoke to suicide and abortion. But that draft never even got as far as the
legislative floor. I reject the State's
argument as, apparently, the majority has by its silence on the issue. The State further argues that the wording of
the statute was an attempt to address abortions and was designed so that a
person who negligently terminated a pregnancy could not be charged under the
statute. Other than the draft of the
1950 Legislative Council, there is no evidence that the legislature had this
intent, although the plain and unambiguous wording of the statute does
effectively exempt such a person from criminal liability.