State v. Kalvig ( 1973 )

Pee Curiam.

This matter is before this court to review an order dismissing charges of felonious theft against defendant who allegedly fraudulently received welfare payments under the Aid to Families with Dependent Children statutes. The trial court held that the prosecution did not have discretion to prosecute defendant for felonious theft under the general theft statute since provisions in the welfare statutes made such alleged acts a misdemeanor. In dismissing the charges, the lower court certified the question to this court as important and doubtful pursuant to Minn. St. 632.10. We affirm.¹

Defendant was charged on November 5, 1971, with theft under Minn. St. 609.52, subd. 2(3), for allegedly fraudulently receiving welfare payments. Minn. St. 609.52, subd. 2, provides in part as follows:

“Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:

* * * * *

(3) Obtains for himself or another the possession, custody or title to property of a third person by intentionally deceiving him with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made.”

Defendant moved to dismiss the charges on the grounds that the exclusive procedure for prosecuting alleged frauds under the welfare statute was contained in Minn. St. 1969, § 256.83, which read as follows:

“Whoever obtains, or attempts to obtain, or aids or abets any person to obtain by means of a wilfully false statement or representation, or by impersonation, or other fraudulent device:

(1) Assistance to which he is not entitled;

(2) Assistance greater than that to which he is justly entitled; is guilty of a misdemeanor; and, upon the conviction thereof, shall be fined not more than $100 or imprisoned for not more than three months.”²

The state contended that it had prosecutorial discretion to proceed under either statute. The trial court rejected this argument and dismissed the charges. It then certified to this court the following question:

“May an Aid to Families with Dependent Children recipient, who is alleged to have misrepresented her eligibility for welfare, and who as a result of such misrepresentation receives unauthorized public funds, be prosecuted, at the discretion of the County Attorney, under the general felony theft statute, Minnesota Statutes, Sec. 609.52, Subd. 2(3), instead of under Minnesota Statutes, Sec. 256.83?”

The theft statute, Minn. St. 609.52, was adopted in 1963 as part of our criminal code. The portion under which defendant has been charged has not been amended. There is no need to discuss at length which section involved herein was first enacted. It is clear and undisputed that the theft statute is one of general application, while the statute referring to punishment for welfare fraud is a specific provision. In interpreting such apparently conflicting legislation, § 645.26, subd. 1, is applicable. It provides as follows:

“When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions be irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session and it shall be the manifest intention of the legislature that such general provision shall prevail.”

A careful analysis of the welfare fraud provisions would lead to a determination that it was a subsequently enacted statute. However, even if this conclusion were not proper, the provisions of § 645.26, subd. 1, quoted above would be applicable since the general theft statute, if subsequently enacted, does not manifest any intention of the legislature that such general provision shall prevail. Eather, the contrary appears. The Advisory Committee Comments on § 609.52, 40 M. S. A. p. 447, indicate that certain statutes relating to larceny not appearing in the criminal code are not affected by the provisions and particularly refer to § 256.83 (now replaced by § 256.98). The Advisory Committee wrote that “[§ 256.83] deals with the same subject and makes the crime a misdemeanor.”

The legislature has indicated a clear and express intention to deal with alleged welfare frauds as a misdemeanor. In Beck v. Groe, 245 Minn. 28, 41, 70 N. W. 2d 886, 895 (1955), our court spoke to the question of conflicts between general legislation and specific provisions, stating:

“* * * [T]he rule that the provisions of a complete and specific act in and of itself controls a prior and general provision is applicable. When this situation arises, the general provision must give way to the specific act and it is thus modified or amended to that extent. Specific provisions in a statute control general provisions. The principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling is well settled. If there is conflict between different statutes as to the same matter, the later statute prevails. [Cases omitted.]”

The trial court in its memorandum accompanying its order discussed the legislative policy involved and said:

“* * * The legislature may have believed that it would not be in the public interest to deprive the children of the care of their mother for long periods of time or that it would not be in the interest of the children to impose the stigma of a felony conviction on the mother.”

This analysis is consistent with the policy statement the legislature itself set forth in Minn. St. 256.85, which provides as follows:

“Sections 256.72 to 256.87 shall be liberally construed with a view to accomplishing their purpose, which is hereby declared to be to enable the state and its several counties to cooperate with responsible mothers or relatives in rearing future citizens, when such cooperation is necessary on account of relatively permanent conditions, in order to keep the family together in the same household, reasonably safeguard the health of the mother and secure to the children during their tender years her personal care and training.”

We hold that the legislative policy set forth in our statute prohibits prosecutorial discretion in bringing charges against alleged fraudulent recipients of welfare benefits. We are not unmindful of the seriousness of the allegations in this case, which allege that defendant wrongfully received $2,457.35. The policy determination as to the method of proceeding against parties who fraudulently obtain substantial amounts of welfare benefits is solely a matter for legislative determination. To allow the prosecution to exercise discretion in the light of our former statutory language would shift this policy determination to the office of the prosecutor. For alleged acts of welfare fraud occurring prior to the effective date of L. 1973, c. 348, prosecutions must be made under the specific welfare fraud provision.

Other jurisdictions have considered this problem. In People v. Gilbert, 1 Cal. 3d 475, 82 Cal. Rptr. 724, 462 P. 2d 580 (1969), the California court addressed itself to a situation which is virtually indistinguishable from this case. The California statutes were similar, and the court in holding that prosecution had to be made under the specific provisions of its welfare fraud statute said (1 Cal. 3d 479, 82 Cal. Rptr. 727, 462 P. 2d 583):

“* * * It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.”

The California court concluded (1 Cal. 3d 481, 82 Cal. Rptr. 728, 462 P. 2d 584) :

“* * * [I]t follows that any conduct which violated [the welfare fraud statute] would also constitute a violation of the theft provision of the Penal Code. This overlap of provisions carrying conflicting penalties typifies the kind of conflict which we envisioned in [In re Williamson, 43 Cal. 2d 651, 276 P. 2d 593 (1954)]; it requires, us to give effect to the special provision alone in the face of the dual applicability of the general provision of the Penal Code and the special provision of the Welfare and Institutions Code.”

The state in its brief cites State v. Fary, 16 N. J. 317, 108 A. 2d 593 (1954), in its support. An examination of this case indicates that Fary supports the position of defendant rather than that of the state. The court agreed with the rule that “where there is a seeming conflict between a general statute and a specific statute,” the latter shall prevail over the former and shall be considered an exception to the general statute.

The state also cites certain New York cases — People v. Lubow, 29 N. Y. 2d 58, 272 N. E. 2d 331 (1971); People v. Gulisano, 57 Misc. 2d 243, 292 N. Y. S. 2d 545 (1968); and other cases from the highest court and the intermediate courts of New York. These cases do indicate some support for the position of the state; but our statutory and case law history clearly indicate a support for the doctrine that the specific statute controls the general statute, unless the legislature manifestly indicates its intention that the latter shall be controlling. When these factors are added to the reasonable inference that the legislature intended to place possible welfare violators in a different classification than that of general theft, because of (a) the low socio-economic position the alleged violators hold; (b) their possible ignorance of the law; (c) the welfare of their children; and (d) possible unintended mistake in filling out welfare forms, it dictates an affirmance of the trial court.

Affirmed;

1 Our decision here does not have any substantial precedential value with respect to welfare fraud because the current statute making such activity a misdemeanor, Minn. St. 1971, § 256.98, has been amended by L. 1973, c. 348, so as to make such activity a crime chargeable under our general theft statute, Minn. St. 609.52.

2 Minn. St. 1969, § 256.83, was repealed by L. 1971, c. 550, § 2, and Minn. St. 1971, § 256.98, was enacted as a successor statute by L. 1971, c. 550, § 1, to read as follows: “Whoever obtains, or attempts to obtain, or aids or abets any person to obtain by means of a wilfully false statement or representation, or by impersonation or other fraudulent device assistance to which he is not entitled, or assistance greater than that to which he is entitled, or knowingly aids or abets in buying or in any way disposing of the property of a recipient of assistance without the consent of the county agency with intent to defeat the purposes of sections 256.451 to 256.475, 256.13 to 256.43, 256.49 to 256.71, 256.72 to 256.87, or chapter 256B, shall be guilty of a misdemeanor. The amount of any assistance paid incorrectly by way of the aforementioned means and established by judicial determination shall be recoverable from the recipient or his estate by the county as a debt due the county. Any amounts recovered shall be paid to the appropriate units of government in the same manner as provided in section 256.863.”