State v. Guminga

395 N.W.2d 344, 55 U.S.L.W. 2269, 1986 Minn. LEXIS 892

Opinions

YETKA, Justice.

On May 29, 1985, the state filed a criminal complaint in Hennepin County Municipal Court against George Joseph Guminga, defendant. Guminga moved to dismiss the charge on August 22,1985. The court held a hearing on August 28 and subsequently denied the motion and certified the present question of law to the Minnesota Court of Appeals on October 29, 1985. The court of appeals then requested this court to take jurisdiction over the certification, which was granted on December 16, 1985.

On March 29, 1985, in the course of an undercover operation, two investigators for the City of Hopkins entered Lindee’s Restaurant, Hopkins, Minnesota, with a 17-year-old woman. All three ordered alcoholic beverages. The minor had never been in Lindee’s before, and the waitress did not ask the minor her age or request identification. When the waitress returned with their orders, the minor paid for all the drinks. After confirming that the drink contained alcohol, the officers arrested the waitress for serving intoxicating liquor to a minor in violation of Minn.Stat. § 340.73 (1984). The owner of Lindee’s, defendant George Joseph Guminga, was subsequently charged with violation of section 340.73 pursuant to Minn.Stat. § 340.941 (1984), which imposes vicarious criminal liability on an employer whose employee serves intoxicating liquor to a minor.¹ The state does not contend that Guminga was aware of or ratified the waitress’s actions.

Guminga moved to dismiss the charges on the ground that section 340.941 violates the due process clauses of the federal and state constitutions. The state contended that the issue was not justiciable and that, even if justiciable, the statute was constitutional. After holding a hearing on August 28, 1985, the court denied the motion to dismiss.

The municipal court found that, while, under Minnesota case law, section 340.941 has apparently withstood constitutional scrutiny, the argument against its constitutionality is persuasive enough to merit certification of the issue. Finding State v. Young, 294 N.W.2d 728 (Minn.1980), controlling, the court acknowledged that language in Young is subject to the interpretation that the case was decided on justicia-bility grounds and did not reach the constitutional challenge. The court declined to adopt this interpretation, however, and found that the criminal sanctions imposed by section 340.941 were held constitutional in Young. However, the court found persuasive the argument against the constitutionality of such a statute adopted by the Georgia Supreme Court in Davis v. City of Peachtree City, 251 Ga. 219, 304 S.E.2d 701 (1983), and certified the question to the Minnesota Court of Appeals.

The court of appeals, pursuant to the June 4, 1985 order of this court regarding certified questions from trial courts, requested this court to take jurisdiction over the question, and the request was granted on December 16, 1985.

The certified question of law before this court is as follows:

Whether Minn.Stat. § 340.941, on its face, violates the defendant’s right to due process of law under the Fourteenth Amendment to the United States Constitution and analogous provisions of the Constitution of the State of Minnesota.

We find that the statute in question does violate the due process clauses of the Minnesota and the United States Constitutions and thus answer the question in the affirmative.

Guminga argues that section 340.941 violates due process as an unjustified and unnecessary invasion of his personal liberties. He maintains that the public interest in prohibiting the sale of liquor to minors does not justify vicarious criminal liability for an employer since there are less burdensome ways to protect the public interest. The constitutionality of the statute has not been squarely addressed by the court, he argues, since earlier cases did not directly raise the issue of whether the statute is unconstitutional.

The state contends that this court originally upheld the constitutionality of section 340.941 in State v. Lundgren, 124 Minn. 162, 144 N.W. 752 (1913), which it recently reaffirmed in Young. According to the state, vicarious criminal liability for employers whose employees sell alcohol to minors is a necessary part of liquor control.

MinmStat. § 340.73 (1984) provides criminal penalties for any person selling intoxicating liquor to a minor:

Subdivision 1. It is unlawful for any person, except a licensed pharmacist to sell, give, barter, furnish, deliver, or dispose of, in any manner, either directly or indirectly, any intoxicating liquors or nonintoxicating malt liquors in any quantity, for any purpose, to any person under the age of 19 years, or to any obviously intoxicated person.

Subd. 2. [Repealed, 1984 c 626 s 14]

Subd. 3. Whoever in any way procures intoxicating liquor or nonintoxicating malt liquor for the use of any person named in this section shall be deemed to have sold it to that person. Any person violating any of the provisions of this section is guilty of a gross misdemeanor.

Minn.Stat. § 340.941 (1984) imposes vicarious criminal liability on the employer for an employee’s violation of section 340.73:

Any sale of liquor in or from any public drinking place by any clerk, barkeep, or other employee authorized to sell liquor in such place is the act of the employer as well as that of the person actu ally making the sale; and every such employer is liable to all the penalties provided by law for such sale, equally with the person actually making the same.

Under Minn.Stat. § 609.03 (1984), a defendant who commits a gross misdemeanor may be sentenced to “imprisonment for not more than one year or to payment of a fine of not more than $3,000 or both.” In addition, a defendant convicted under section 340.941 may, at the discretion of the licensing authority, have its license suspended, revoked or be unable to obtain a new license. Minn.Stat. §§ 340.13, .135, .19 (1984); see Op. Minn. Att’y Gen. 218-G-14 (April 8, 1940). As a gross misdemeanor, a conviction under section 340.941 would also affect a defendant’s criminal history score were he or she to be convicted of a felony in the future. Minn.Sent.Guide. II.B.3.

The preliminary issue is whether this court has already ruled on the constitutionality of section 340.941. The original version of the present statute was passed in 1905. Minn. Rev. Laws § 1565 (1905). In State v. Lundgren, 124 Minn. 162, 144 N.W. 752 (1913), the defendant, a bar owner whose bartender served liquor to a minor without the defendant’s knowledge and contrary to his instructions, challenged the vicarious criminal liability imposed by the statute. The court found that the criminal liability imposed by the statute, although “drastic,” bears a reasonable relationship to the public policy it is to address. In State v. Young, 294 N.W.2d 728 (Minn.1980), this court cited Lundgren when a defendant whose employee sold liquor to a minor without his knowledge or authority challenged section 340.941 as a violation of due process. While the court stated that imprisonment under section 340.941 would probably be unconstitutional,² it found that, since only a fine had been imposed, there had been no due process violation.

This case presents a different situation. Since this is not an appeal from a conviction, we do not yet know whether, if found guilty, Guminga would be subjected to imprisonment, a suspended sentence, or a fine. Even if there is no prison sentence imposed, under the new sentencing guidelines, a gross misdemeanor conviction will affect his criminal history score were he to be convicted of a felony in the future. Young, on the other hand, was decided before the sentencing guidelines took effect. This case presents a direct challenge to the constitutionality of section 340.941.

(⅞⅛ find that criminal penalties based on vicarious liability under Minn.Stat. § 340.-941 are a violation of substantive due process and that only civil penalties would be constitutional^) A due process analysis of a statute involves a balancing of the public interests protected against the intrusion on personal liberty while taking into account any alternative means by which to achieve the same end. See Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1367, 6 L.Ed.2d 625 (1961); Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 715 (Minn.1978) (“[T]he requirements of due process must be measured according to the nature of the government function involved and whether or not private interests are directly affected by the government action.”); W. LaFave & A. Scott, Handbook on Criminal Law § 20 (1972). Section 340.941 serves the public interest by providing additional deterrence to violation of the liquor laws. The private interests affected, however, include liberty, damage to reputation and other future disabilities arising from crimi nal prosecution for an act which Guminga did not commit or ratify. Not only could Guminga be given a prison sentence or a suspended sentence, but, in the more likely event that he receives only a fine, his liberty could be affected by a longer presumptive sentence in a possible future felony conviction. Such an intrusion on personal liberty is not justified by the public interest protected, especially when there are alternative means by which to achieve the same end, such as civil fines or license suspension, which do not entail the legal and social ramifications of a criminal conviction. See Model Penal Code § 1.04 comment (b) (1985).³

We decline, however, to rewrite section 340.941 by holding that it can be enforced only by civil penalties. That is more properly a legislative function.

The dissent cites the Model Penal Code; LaFave and Scott, Handbook on the Criminal Law; and Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L. Rev. 689 (1930). These authorities are used to support its argument that the statute should be upheld. The dissent fails to mention, however, that the commentators cited by the dissent fully support our position that persons vicariously liable for liquor law violations cannot be criminally punished. Though it is true that the Model Penal Code makes provisions for vicarious liability on criminal cases, the commentary explicitly recommends that such liability only be imposed “in instances in which the stigma and the sanctions are not assimilated to those that are appropriate for crime.” Model Penal Code § 2.06(2)(b) comment 4 (1985). In a related section dealing with appropriate treatment of all vicarious or strict liability crimes, the drafters of the code were quite explicit in their beliefs on the subject:

The liabilities involved are indefensible, unless reduced to terms that insulate conviction from the type of moral condemnation that is and ought to be implicit when a sentence of probation or imprisonment may be imposed. It has been argued, and the argument undoubtedly will be repeated, that strict liability is necessary for enforcement in a number of the areas where it obtains. But if practical enforcement precludes litigation of the culpability of alleged deviation from legal requirements, the enforcers cannot rightly demand the use of penal sanctions for the purpose. Crime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant’s act was culpable. This is too fundamental to be compromised. The law goes far enough if it permits the imposition of a monetary penalty in cases where strict liability has been imposed.

Model Penal Code § 2.05, comment 1 (1985).

The dissent’s citation to an article by Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L.Rev. 689 (1930), is also inapposite. After finding numerous opinions on both sides of the question of whether to impose vicarious criminal liability, Professor Sayre states: “The liquor cases embody numerous diverging and conflicting views, and cannot be reconciled.” Id. at 715-16. Professor Sayre noted:

The danger is that criminal courts may forget the fundamental distinctions between criminal and civil liability for another’s acts, and begin to use as precedents for true-crime cases those liquor cases which virtually adopt the doctrine of respondeat superior.

Id. at 716. Professor Sayre went on to summarize the appropriate legal principle in these terms:

As the decisions indicate, a sharp line must be drawn between true crimes involving serious punishments and petty misdemeanors involving only light monetary fines. Where the offense is in the nature of a true crime, that is, where it involves moral delinquency or is punishable by imprisonment or a serious penalty, it seems clear that the doctrine of re-spondeat superior must be repudiated as a foundation for criminal liability.

Id. at 717.

Finally, far from endorsing criminal sanctions for violation of vicarious liability statutes, commentators LaFave and Scott believe that such sanctions are a mistake.

To the extent that vicarious liability can be justified in the criminal law, it should not be utilized to bring about the type of moral condemnation which is implicit when a sentence of imprisonment is imposed. On the other hand, imposition of a fine is consistent with the rationale behind vicarious criminal liability. Vicarious liability is imposed because of the nature and inherent danger of certain business activities and the difficulties of establishing actual fault in the operation of such businesses. A fine, unlike imprisonment, is less personal and is more properly viewed as a penalty on the business enterprise.

* * * * * *

Yet, it must be recognized that the imposition of criminal liability for faultless conduct is contrary to the basic Anglo-American premise of criminal justice that crime requires personal fault on the part of the accused. Perhaps the answer should be the same as the answer proposed in the case of strict-liability crimes: it is proper for the legislature to single out some special areas of human activity and impose vicarious liability on employers who are without personal fault, but the matter should not be called a “crime” and the punishment should not include more than a fine or forfeiture or other civil penalty; that is, it should not include imprisonment. As the law now stands, however, in almost all jurisdictions imprisonment and the word “criminal” may be visited upon perfectly innocent employers for the sins of their employees.

LaFave & Scott, Handbook on Criminal Law § 32 at 227-28 (1972).

Moreover, this court, in State v. Young, 294 N.W.2d 728 (Minn.1980), was dealing only with the imposition of a fine, not imprisonment. We suggested in that case that imprisonment might dictate a different result.

The dissent argues that vicarious liability is necessary as a deterrent so that an owner will impress upon employees that they should not sell to minors. However, it does not distinguish between an employer who vigorously lectures his employees and one who does not. According to the dissent, each would be equally guilty. We believe it is a deterrent enough that the employee who sells to the minor can be charged under the statute and that the business is subject to fines or suspension or revocation of license.

In this last quarter of the twentieth century, there is doubt whether the United States Supreme Court would uphold a conviction under the provisions of the United States Constitution. Even if it were to do so, the statute we hold violates Minn.Const. art. I, § 7, which states:

Due process; prosecutions; double jeopardy, self-incrimination; bail; habeas corpus. No person shall be held to answer for a criminal offense without due process of law, and no person shall be put twice in jeopardy of punishment for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.

We specifically and exclusively decide the question under the provisions of the Minnesota Constitution herein cited. We find that, in Minnesota, no one can be convicted of a crime punishable by imprisonment for an act he did not commit, did not have knowledge of, or give expressed or implied consent to the commission thereof.

The certified question is thus answered in the affirmative that we hold section 340.-941 unconstitutional under the provisions of the Minnesota Constitution cited.

Footnotes

1

. The complaint states the penalty as possible imprisonment and fine:

COUNT I: SALE OF INTOXICATING LIQUOR TO A MINOR.

M.S. 340.73, 340.941.

Penalty: 0-1 year imprisonment and/or 0-S3,000 fine.

... sell, furnish and deliver intoxicating liquor to a person under the age of 19 when his employee, one MARY LYNN ISHAM, did sell, furnish and deliver intoxicating liquor to a person under the age of 19.

2

. In Young, the court found as persuasive authority for the proposition that imprisonment under section 340.941 would be unconstitutional the earlier case of Hershom v. People, 108 Colo. 43, 113 P.2d 680 (1941), and Commonwealth v, Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), cert. denied, 363 U.S. 848, 80 S.Ct. 1624, 4 L.Ed.2d 1731 (1960). In Hershom, the Colorado Supreme Court upheld a similar vicarious criminal liability statute since violation constituted only a misdemeanor, but held that a felony conviction would be excessive punishment. In Koczwara, the Pennsylvania Supreme Court allowed conviction of the defendant on a re-spondeat superior basis as long as the punishment imposed was a fine and not imprisonment, which the court found to be excessive and unprecedented for crimes based on vicarious liability.

3

. We agree with the reasoning of the Georgia Supreme Court in Davis v. City of Peachtree City, 251 Ga. 219, 304 S.E.2d 701 (1983). Davis involved the criminal conviction of the president of a chain of convenience stores whose employee had sold liquor to a minor. The defendant was prosecuted under a city ordinance holding licensees responsible for the acts of their employees and received a $300 fine and a 60-day suspended sentence. The Georgia Supreme Court reversed the conviction, ruling that it was a violation of due process since the public interest did not justify criminal prosecution:

In balancing this burden against the public’s interests, we find that it cannot be justified under the due process clauses of the Georgia or United States Constitutions, regardless of Peachtree City’s admittedly legitimate interests of deterring employers from allowing their employees to break the law and of facilitating the enforcement of these laws. This is especially true, when, as here, there are other, less onerous alternatives which sufficiently promote these interests. The Model Penal Code recommends that civil violations providing civil penalties such as fines or revocation of licenses be used for offenses for which the individual was not morally blameworthy and does not deserve the social condemnation "implicit in the concept ‘crime’.” Model Penal Code § 1.04(s), Comments, Tent. Draft No. 2, p. 7 (1954). The availability of such sanctions renders the use of criminal sanctions in vicarious liability cases unjustifiable. LaFave & Scott, supra, p. 228.

Although some commentators and courts have found that vicarious criminal liability does not violate due process in misdemeanor cases which involve as punishment only a slight fine and not imprisonment, we decline to so hold. The damage done to an individual’s good name and the peril imposed on an individual’s future are sufficient reasons to shift the balance in favor of the individual. The imposition of such a burden on an employer "cannot rest on so frail a reed as whether his employee will commit a mistake in judgment," but instead can be justified only by the appropriate prosecuting officials proving some sort of culpability or knowledge by the employer.

Davis, 304 S.E.2d 703-04 (citations omitted).