State v. Robert Witham , 202 Vt. 97 ( 2016 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.
2016 VT 51
No. 2015-233
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Criminal Division
Robert Witham October Term, 2015
Michael S. Kupersmith (motion to dismiss); James R. Crucitti, J. (final judgment)
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General,
Montpelier, for Plaintiff-Appellee.
James M. LaMonda of Law Office of James M. LaMonda, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. SKOGLUND, J. This appeal raises a narrow, but novel, issue: whether
offenders previously convicted of home improvement fraud can be found guilty under the same
statute if they subsequently perform home improvement activities but claim lack of knowledge
of the statutory obligation to notify the Attorney General and file a surety. Defendant argued
that the statute’s notice and surety section necessarily includes a scienter element. The State
asserted that the section should be read without a fault element. The trial court held that the
notice and surety section delineates a strict liability offense. We affirm.
¶ 2. On October 12, 2005, defendant pled guilty to one count of home improvement
fraud in violation of 13 V.S.A. § 2029(b)(1). The plea agreement imposed a four to twelve
month sentence, all suspended but for ten days on the work crew, and required defendant to
perform restitution, to pay a fine, and to be on probation. Apparently, defendant was aware that
he was to be placed on the home improvement fraud registry as a result of his conviction.
Defendant satisfactorily completed the sentence imposed and had no contact with law
enforcement until the circumstances underlying this appeal.
¶ 3. In 2014, a report was made to the Colchester Police Department that defendant
was performing home improvement work without the proper notice to the Attorney General and
without filing the necessary surety bond or letter of credit. At that time, defendant sought legal
advice and claims that only then did he learn that he was obligated, pursuant to 13 V.S.A.
§ 2029(f)(2), to notify the Attorney General and post a bond or letter of security. The police
conducted an investigation and concluded that the improper home improvement activities
occurred at three separate locations during October 2012, June 2013, and July 2013. In
November 2014, the State charged defendant with three counts of violating the notice and surety
requirements of § 2029(f)(2).
¶ 4. Under § 2029(f)(2),1 a person previously convicted of home improvement fraud
“may engage in home improvement activities for compensation” only if:
[T]he person notifies the Office of the Attorney General of the
intent to engage in home improvement activities, and . . . the
person has filed a surety bond or an irrevocable letter of credit with
the Office in an amount of not less than $50,000.00, and pays on a
regular basis all fees associated with maintaining such bond or
letter of credit.
Id. Further, § 2029(e)(5) provides that a person who violates § 2029(f)(2) “shall be imprisoned
for not more than two years or fined not more than $1,000.00, or both.” Id. § 2029(e)(5).
1
In 2015, the Legislature deleted § 2029(c) and redesignated subsections (d) through (g)
as (c) through (f). 2015, No. 13, § 1. Defendant was charged with violating § 2029(f) prior to
the statute’s redesignation; as a result, this opinion uses the pre-amendment citations.
2
¶ 5. Defendant moved to dismiss the counts pursuant to Vermont Rule of Criminal
Procedure 12(d) because the charging information did not allege that he knew about the
requirements of § 2029(f)(2). The State opposed the motion, asserting that § 2029(f)(2) should
be read without a fault element. On April 24, 2015, the trial court issued a written order denying
defendant’s motion and holding that § 2029(f), in combination with § 2029(e)(5), does not
contain a scienter element.
¶ 6. To reach its conclusion, the trial court focused on the five factors this Court
described in State v. Roy, 151 Vt. 17, 25, 557 A.2d 884, 889 (1989), partially overruled on other
grounds by State v. Brillon, 2008 VT 35, 183 Vt. 475, 955 A.2d 1108. The trial court noted that
the first factor—the severity of the punishment—favored strict liability because violating
§ 2029(f) is a misdemeanor without a significant incarceration period. Similarly, the second
factor—the potential harm to the public—supported a finding of no mens rea because the statute
protects the public from contractors previously determined to be untrustworthy. The trial court
next found that contractors as a group should be expected to know the statutory and regulatory
requirements that govern their trade; therefore, the third factor—knowledge of the relevant
information—suggested that § 2029(f) did not contain a scienter element. The fourth factor—
the difficulty of prosecution if proof of intent is required—likewise reinforced the trial court’s
determination because proving defendant’s subjective knowledge of the law would be virtually
impossible. Finally, the trial court found that the last factor—the number of prosecutions
expected—weighed slightly in favor of strict liability because prosecutions under § 2029(f) are
rare. Because the factors taken together weighed strongly in favor of strict liability, the trial
court held that a scienter element should not be implied in the statute.
¶ 7. After the trial court’s written decision issued, defendant entered a conditional plea
to two of the charges, reserving the right to appeal the question of whether the statute contains a
scienter element. This appeal followed.
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¶ 8. It is undisputed that defendant did not properly notify the Attorney General or file
a surety bond or an irrevocable letter of credit. The only question on appeal is whether the
statute required defendant to know about the notification and surety requirements imposed by
§ 2029(f)(2). We affirm and hold that § 2029(f) is a strict liability offense.
¶ 9. Our review of a statute to determine whether an element of intent should be
implied is a question of law, which we review de novo. State v. Pontbriand, 2005 VT 20, ¶ 12,
178 Vt. 120, 878 A.2d 227.
¶ 10. It should be noted that this Court does not assume that a statute without a mens
rea requirement necessarily creates a strict liability offense. State v. Francis, 151 Vt. 296, 307,
561 A.2d 392, 398 (1989); see also Morissette v. United States, 342 U.S. 246, 263 (1952)
(“[M]ere omission from [the statute] of any mention of intent will not be construed as
eliminating that element from the crimes denounced.”). As a general rule, we interpret criminal
statutes in the defendant’s favor, but we “must avoid interpretations which defeat the purpose of
the statute.” Roy, 151 Vt. at 25, 557 A.2d at 889. Thus, in some cases we have discerned a
mens rea element without an express writing in the statute. See, e.g., State v. Audette, 149 Vt.
218, 222, 543 A.2d 1315, 1317 (1988) (determining kidnapping contains mens rea element),
partially overruled on other grounds by State v. Bourn, 2012 VT 71, 192 Vt. 270, 58 A.3d 236.
But in other circumstances we have determined that statutes contain strict liability offenses
without an element of fault. See, e.g., Roy, 151 Vt. at 27, 557 A.2d at 891 (finding attempt to
elude police officer is strict liability offense).
¶ 11. To determine if a statute contains a scienter element, we first examine the plain
language of the statute for keys to the Legislature’s intent. See, e.g., State v. Richland, 2015 VT
126, ¶ 7, 21, __ Vt. __, 132 A.3d 702 (finding mens rea in statute’s plain language and holding
mens rea applies to successive elements in statute). We construe the language with the
assumption that “[w]here the Legislature includes particular language in one section of a statute
4
but omits it in another section of the same act, it is generally presumed that the Legislature did so
advisedly.” State v. Fontaine, 2014 VT 64, ¶ 10, 196 Vt. 579, 99 A.3d 1034 (citation omitted).
Here, a subsection of the same statute—§ 2029(b)(1)—defines the mens rea of home
improvement fraud as “knowingly.” Id. Given the inclusion of “knowingly” in § 2029(b)(1), it
not only appears that the Legislature intended for § 2029(f) to be a strict liability offense, but
also that the Legislature had ample opportunity to insert a scienter element if it so chose.
¶ 12. Next, we look to the common law because our assumption is that the Legislature
enacted the statute with an understanding of historical legal concepts. State v. Stanislaw, 153 Vt.
517, 522, 573 A.2d 286, 289 (1990). If a crime originates in the common law, the presumption
is that intent remains a necessary part of the offense, absent an express contradiction from the
Legislature. Id. at 522-23, 573 A.2d at 290. In this case, however, the law prohibiting home
improvement fraud is entirely a creature of statute. See 2003, No. 51, § 1. As a result, no
common law presumption in favor of imputing a scienter element exists.
¶ 13. Without this common law presumption, our precedent next directs us to examine
the factors set forth in Roy. See, e.g., State v. Searles, 159 Vt. 525, 527-29, 621 A.2d 1281,
1283 (1993) (applying Roy factors to sexual assault of person under sixteen). In Roy, the
defendant was convicted of attempting to elude a police officer. On appeal, he argued that a
scienter element should be implied in the statute and that “[h]e must have known that he was
being signaled to stop by an enforcement officer.” Roy, 151 Vt. at 25, 557 A.2d at 889. We
rejected this argument. Id. at 27, 557 A.2d at 891. To come to our conclusion, we examined the
statutory language and five additional factors: “The severity of the punishment; the seriousness
of the harm to the public; the defendant’s opportunity to ascertain the true facts; the difficulty of
prosecution if intent is required; and the number of prosecutions expected.” Id. at 25, 557 A.2d
at 889-90; see also 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.5(a), at 383–86 (2d
5
ed. 2003). We found that the five factors did not “undercut the conclusion drawn from the
statutory language.” Roy, 151 Vt. at 26, 557 A.2d at 890.
¶ 14. In this case, the five factors outlined in Roy support the conclusion that the
Legislature intended for § 2029(f) to be a strict liability crime. Of the five factors, the most
important is the first—the severity of the punishment. Stanislaw, 153 Vt. at 523, 573 A.2d at
290. In Roy, we noted that attempting to elude a police officer was a misdemeanor, which
supported the conclusion that the statute had no fault element. Roy, 151 Vt. at 26, 557 A.2d at
890. Here, because the maximum term of imprisonment is two or less years, a violation of
§ 2029(f) is a misdemeanor. See § 2029(e)(5) (stating maximum penalty is two or less years of
imprisonment); 13 V.S.A. § 1 (defining “felony” as any offense “whose maximum term of
imprisonment is more than two years”). Although misdemeanor offenses are not per se strict
liability offenses, it is generally true that lighter punishments suggest that the Legislature
intended the crime to be a strict liability offense. See Audette, 149 Vt. at 222, 543 A.2d at 1317;
1 LaFave, supra, § 5.5(a), at 383-84.
¶ 15. We are not persuaded by defendant’s argument that the cumulative effect of each
violation of § 2029(e)(5) could result in severe punishment. First, we do not measure the
severity of the punishment based on multiple violations of the same statute; rather, the factor
focuses on the punishment the Legislature imposed for a single violation of § 2029(f). Second,
we have previously held that a crime with a maximum term of twenty years was a strict liability
offense. Searles, 159 Vt. at 528-29, 621 A.2d at 1283. In this case, even if defendant was
sentenced to serve consecutive terms for his three violations of § 2029(f), it would result in a
total of six years of incarceration. Given the comparatively light sentence imposed by
§ 2029(e)(5), the first factor strongly supports the conclusion that § 2029(f) is a strict liability
offense.
6
¶ 16. Likewise, Roy’s second factor suggests § 2029(f) does not contain a fault
element. The second factor focuses on protecting the public from serious harm based on the
assumption that, if the potential harm to the public is highly likely or particularly grave, it is
more probable that the Legislature intended the statute to lack a scienter element. Searles, 159
Vt. at 528, 621 A.2d at 1283. While looking at the seriousness of the harm, we must take great
care to “to avoid interpreting statutes as eliminating mens rea where doing so criminalizes a
broad range of . . . innocent conduct.” In re Welfare C.R.M., 611 N.W.2d 802, 809, 810 (Minn.
2000) (holding possession of dangerous weapons on school yard is not strict liability crime
because knives are common items). Section 2029(f) does not criminalize a broad range of
activity. Rather, it imposes an obligation on a narrow group of people previously convicted of
home improvement fraud and ensures that such offenders complete any home improvement
activities they undertake. This prophylactic purpose supports strict liability.
¶ 17. Roy’s third factor—defendant’s opportunity to establish the true facts—does not
weigh significantly in favor of strict liability. In Roy, the statute required that “the officer wear
the appropriate insignia and the law enforcement vehicle sound a siren and have a flashing signal
lamp”—elements that made it extremely easy for a person to ascertain that the police were
signaling him or her to stop. Roy, 151 Vt. at 26, 557 A.2d at 890; cf. 1 LaFave, supra, § 5.5(a),
at 385 (“The harder to find out the truth, the more likely the legislature meant to require fault in
not knowing.”). Here, defendant is a contractor who should have some knowledge of the rules
and regulations governing his trade. Indeed, some courts have noted that, if a statute is aimed at
a specific industry, members of that industry may be expected to be aware of the relevant
statutes. See, e.g., Rivera v. State, 363 S.W.3d 660, 670 (Tex. App. 2011) (finding factor
weighed in favor of strict liability because ordinance directed at entertainers, not ordinary
citizens). Moreover, defendant knew that he would be placed on a home improvement fraud
registry, a fact that could have alerted him to the possibility of other collateral consequences. On
7
the other hand, as defendant argues, § 2029(f) is a collateral consequence imposed by the
criminal code, not the type of municipal code or regulation that generally governs home
improvement contractors. See, e.g., 24 V.S.A. § 3101(a) (establishing authority for cities, towns,
and villages to establish codes and regulations governing construction). More important, unlike
the statute in Roy, § 2029(f) does not contain facts that would make a violation of the statute
obvious, which tempers the argument that the statute is a strict liability offense.
¶ 18. But Roy’s fourth factor offers considerable support that § 2029(f) does not
contain a scienter element—that is, if § 2029(f) required a fault element, it would be nearly
impossible to prosecute. Indeed, absent an admission from the defendant, it is difficult to see
what evidence could establish a defendant’s subjective knowledge of the surety requirement.
See Roy, 151 Vt. at 26, 557 A.2d at 890 (“[I]ntent would be hard to prove in the individual case
because of the subjective nature of the element.”). Defendant argues that prosecutors must prove
a scienter element to implement the legislative scheme, but we fail to see how this argument
affects the efficacy of prosecutions. Because we assume that the Legislature intended for
§ 2029(f) to be effectively enforced, the fourth factor strongly suggests that we should not
impute a fault element into § 2029.
¶ 19. Finally, the fifth factor cuts against strict liability. The principle underlying this
factor is that the “fewer the expected prosecutions, the more likely the legislature meant to
require the prosecuting officials to go into the issue of fault.” 1 LaFave, supra, § 5.5(a), at 386.
Although our case law does not delve into this factor in great detail, we agree with defendant that
prosecutions under § 2029 are rare and prosecutions under § 2029(f) are even more rare.
¶ 20. Ultimately, although Roy’s third and fifth factors tend to weigh against strict
liability, the other three factors predominately favor a conclusion that the Legislature intended
for § 2029(f) to lack a fault element. Moreover, the absence of a common law presumption
against strict liability and the statutory language—particularly the Legislature’s inclusion of
8
“knowingly” in § 2029(b)(1)—support this conclusion. We hold that § 2029(f) is a strict liability
offense.
Affirmed.
FOR THE COURT:
Associate Justice
¶ 21. ROBINSON, J., concurring. Because this case does not fall within any
exception to the general rule that ignorance of the law is no excuse, I concur in the majority’s
affirmance of defendant’s conviction. I write separately because my path to that conclusion
diverges from the majority’s.
¶ 22. The parties to this case, and the majority, focus on a line of cases addressing the
question of whether the defendant must have knowledge with respect to every element of a
particular charged crime, or whether the crime can be characterized as a “strict liability offense”
defined by the defendant’s actions without regard to intent or knowledge as to every element. A
separate body of law addresses the question of whether and when ignorance of a law is a defense
to its enforcement. Defendant’s defense in this case clearly falls within the latter category—
relying on ignorance of the law as a defense. For that reason, in this case, we should apply
authority relating to ignorance-of-the-law defenses—not the framework applied by the majority
in this case.
¶ 23. This court has developed a multi-part test for determining what intent or
knowledge a defendant must have with respect to the elements of a charged crime. See State v.
Roy, 151 Vt. 17, 25, 557 A.2d 884, 889 (1989), partially overruled on other grounds by State v.
Brillon, 2008 VT 35, 183 Vt. 475. In Roy, the defendant was convicted of, among other things,
failing to stop his motor vehicle “when signaled to do so by an enforcement officer operating a
9
law enforcement vehicle sounding a siren and displaying a flashing blue lamp.” 151 Vt. at 19
n.1, 557 A.2d at 886 n.1. He argued that an implied element of the crime was that he knew that
he was being signaled to stop by a law enforcement officer displaying a flashing light and
sounding a siren. Id. at 25, 557 A.2d at 889. In determining whether the applicable statute, 23
V.S.A. § 1133, required that the defendant have knowledge that he was being signaled to stop by
a law enforcement officer, this Court considered first and foremost the text of the statute itself, as
well as the severity of the potential punishment, the seriousness of the harm to the public, the
defendant’s opportunity to ascertain the true facts—in that case the fact that the officer’s blue
lights were flashing––the difficulty of prosecution if intent is required, and the number of
prosecutions expected. Roy, 151 Vt. at 25, 557 A.2d at 889-90. Applying these factors, this
Court concluded that the Legislature intended the statute to penalize a failure to stop when
signaled by an officer operating blue lights without the need for the State to prove that the
individual knew the blue lights were flashing. Id. at 26-27, 557 A.2d at 890-91.
¶ 24. The line of cases cited in Roy all considered whether the State had to prove that
the defendant had intent or knowledge with respect to a particular fact that constituted an
element of a charged crime. See, e.g., State v. Peters, 141 Vt. 341, 347, 450 A.2d 332, 335
(1982) (concluding that enhanced penalties for assaulting officer in performance of official duty
applies when defendant knows or has good reason to believe that person is in fact officer); State
v. Kerr, 143 Vt. 597, 604-05, 470 A.2d 670, 673-74 (1983) (concluding that statute prohibiting
carrying dangerous or deadly weapon while committing felony does not require proof that
defendant has knowingly carried deadly weapon).
¶ 25. Likewise, our subsequent cases considering or applying the Roy framework all
involve the question of whether the defendant was required to have knowledge of each factual
element of a particular crime. See, e.g., State v. Richland, 2015 VT 126, ¶ 19, ___ Vt. ___, 132
A.3d 702 (declining to consider factors because language of statute clearly required that
10
defendant know that person he was enabling to access alcohol was underage); In re Appeal of
Tinker, 165 Vt. 621, 622, 686 A.2d 946, 947-48 (1996) (mem.) (applying factors in considering
whether elements of abuse of elderly or disabled adult include knowledge of victim’s status as
elderly or disabled adult); State v. Searles, 159 Vt. 525, 526-29, 621 A.2d 1281, 1282-83 (1993)
(applying Roy factors in considering whether statutory rape is “strict liability” crime or whether,
instead, State must prove that defendant knew person with whom he engaged in sexual act was
under age of sixteen).
¶ 26. None of the cases in this line of authority involve an asserted defense that the
defendant did not know the requirements of the law. They all involve the question of knowledge
as to one or more factual elements of a particular crime, and the analytical framework this Court
developed in Roy and its progeny is tailored to that context.
¶ 27. A related but separate body of law addresses the question of whether and when a
defendant’s ignorance as to the requirements of the law may constitute a defense. This Court has
repeatedly affirmed that ignorance of the law is generally no excuse to its enforcement. See,
e.g., State v. Woods, 107 Vt. 354, 356-57, 179 A. 1, 2 (1935) (holding that where defense is
based upon mistake of law rather than of fact, presumption “that every one is conclusively
presumed to know the law [is] of unquestioned application in Vermont as elsewhere, both in civil
and criminal cases”).
¶ 28. Modern courts and commentators have brought more nuances to the broader
claim that ignorance of the law provides no excuse, recognizing a number of circumstances in
which a defendant’s knowledge of the law, or lack thereof, may be relevant to a criminal
defendant’s liability. As commentator Wayne LaFave has explained, the broad proposition that
ignorance of the law is no excuse is not precisely correct, and is subject to “numerous exceptions
and qualifications.” 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.6(a), at 394 (1986).
11
¶ 29. Of most significance to this case, ignorance that the law proscribes particular
conduct may be a defense if knowledge of the law is an element of the offense in question. Id.
§ 5.6(a) (“[I]gnorance or mistake of fact or law is a defense when it negatives the existence of a
mental state essential to the crime charged.”); see also Model Penal Code 2.04(1) (2015)
(“Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake
negatives the purpose, knowledge, belief, recklessness or negligence required to establish a
material element of the offense or (b) the law provides that the state of mind established by such
ignorance or mistake constitutes a defense.”).
¶ 30. In Bryan v. United States, 524 U.S. 184 (1998), the U.S. Supreme Court
considered the question of when knowledge that conduct is illegal is itself an element of the
crime to be proven by the State. The defendant in that case was convicted of “willfully” dealing
in firearms without a federal license. He knew that his conduct was unlawful, but the district
court considered whether the term “willfully” in the operative statute required proof that the
defendant knew of the particular federal licensing requirement at issue. Id. at 186. The Court
explained that as a general matter, when used in the criminal context, a “willful” act is one taken
“with knowledge that [the] conduct [is] unlawful. Id. at 192 (quotation omitted). The Court
explained that the defendant’s general knowledge that his conduct was unlawful satisfied the
“willfulness” requirement, and the State did not need to prove that the defendant was specifically
aware of the federal licensing requirement. Id. at 191-96.
¶ 31. The Court contrasted a “willfulness” requirement with a requirement in related
statutes that acts be committed “knowingly,” explaining that “the term ‘knowingly’ does not
necessarily have any reference to a culpable state of mind or to knowledge of the law” and that
“the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished
from knowledge of the law.” Id. at 192 (quotation omitted). The Court concluded,
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[U]nless the text of the statute dictates a different result, the term “
knowingly” merely requires proof of knowledge of the facts that
constitute the offense.
With respect to the three categories of conduct that are made
punishable by [the federal statute] if performed “knowingly,” the
background presumption that every citizen knows the law makes it
unnecessary to adduce specific evidence to prove that “an evil-
meaning mind” directed the “evil-doing hand.” More is required,
however, with respect to the conduct in the fourth category that is
only criminal when done “willfully.” The jury must find that the
defendant acted with an evil-meaning mind, that is to say, that he
acted with knowledge that his conduct was unlawful.
Id. at 193 (footnotes omitted) (emphasis added).
¶ 32. The U.S. Supreme Court distinguished two cases in which it held that “willful”
violation of particular statutes in the tax code required knowledge of the specific provisions of
the tax code at issue. Id. at 193-96. The Court explained that those cases “ ‘carv[e] out an
exception to the traditional rule’ that ignorance of the law is no excuse” because they involved
highly technical statutes that presented the danger of ensnaring individuals engaged in apparently
innocent conduct. Id. at 194-95 (quotation omitted).
¶ 33. The Court’s analysis in Bryan reinforces that (1) the general rule is that “the
background presumption that every citizen knows the law makes it unnecessary to adduce
specific evidence” that a defendant knows that his or her conduct is unlawful; (2) the bar for
excepting a statute from this general requirement is high, apparently limited to statutes
proscribing “willful” violations of the law; and (3) even when the State does have to prove
defendant’s knowledge that the conduct in question was unlawful, it usually does not have to
prove that defendant knew the specific provision in the law at issue.2 See also McFadden v.
2
Modern courts and commentators have recognized several other exceptions to the
general rule that “ignorance of the law is no excuse,” none of which appear to apply here. For
example, where a defendant has a mistaken impression concerning the legal effect of some
collateral matter that results in misunderstanding the legal significance of defendant’s conduct,
this claim may be subject to a very different analysis from the claim that the defendant did not
know the conduct in question was proscribed. See 1 W. LaFave, supra § 5.6(a), (d), at 394, 405.
13
U.S., __ U.S. __, 135 S. Ct. 2298, 2304 (2015) (holding that defendant who knowingly
distributes heroin but does not know that heroin is listed on schedules would be guilty of
knowingly distributing controlled substance because ignorance of law is typically no defense to
criminal prosecution).
¶ 34. In this case, defendant’s defense is that he did not know that his conduct violated
his legal obligations; he does not plead ignorance as to any factual element of the charge against
him. For that reason, the body of law dealing with mistakes or ignorance of the law is squarely
on point.
¶ 35. In light of the above discussion, this is not a close case. The statute at issue
requires a person who is convicted of home improvement fraud to notify the Attorney General of
the conviction. 13 V.S.A. § 2029(d)(1).3 It allows the person to engage in home improvement
activities for compensation only upon notice to the employer and the Attorney General if the
work is for a company engaged in home improvement activities, or, otherwise, only upon filing a
surety bond or irrevocable letter of credit with the Attorney General. Id. § 2029(f). And it
provides that a person who violates either of these requirements “shall be imprisoned for not
more than two years or fined not more than $1,000.00 or both.” Id. § 2029(e). It contains no
“willfulness” requirement or other language that would remove the general presumption that a
defendant’s ignorance that conduct is proscribed by the law is not a defense to a violation of that
law.
A defendant’s ignorance of the law may also constitute a valid defense where a defendant
believes the conduct is not proscribed because the enactment in question has not been made
reasonably available to the public or defendant has reasonably relied upon a statute, judicial
decision, or administrative order. Id. § 5.6(e); see also Model Penal Code § 2.04(3) (identifying
essentially same exceptions to general rule that ignorance of law is no excuse).
3
Consistent with the majority, I reference the pre-2015 amendment citations to these
statutes.
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¶ 36. Although I concur fully in the result of the majority’s analysis, I write separately
because I believe that the Roy framework applied by the majority is ill-suited to this genre of
cases, and that the majority’s implicit holding that ignorance-of-the-law defenses are subject to
the multi-factorial analysis in Roy could open the door to unwarranted claims and unnecessary
litigation. I realize that the majority responded to the issues on appeal using the framework
presented by both parties. But in embracing that framework without considering whether it is
most appropriate to this case, the majority may inadvertently push the evolving law in directions
that don’t make sense.
¶ 37. I am authorized to state that Justice Dooley joins this concurrence.
Associate Justice
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