By Lee Dryden
The Daily Record Newswire
Prompted by a push from a Michigan Supreme Court justice, state lawmakers tackled the sticky issue of people being branded as criminals for unknowingly violating regulations.
Gov. Rick Snyder recently signed into law House Bill 4713 which was unanimously approved by both the state House and Senate. The bill establishes a default mens rea — Latin for “guilty mind” — standard for crimes in which no such standard currently exists.
It is aimed at regulatory crimes and does not apply to areas such as the Penal Code, Vehicle Code and controlled substances violations in the Public Health Code. It is an effort to avoid strict liability interpretations in cases where there was no intent to violate a regulation.
Strict liability remains in place for crimes against people and property.
In discussion of the legislation, a case cited often is People v. Alan N. Taylor. Taylor, a business owner in Sparta, was convicted and fined more than $8,000 after unknowingly extending a parking lot over a small portion of a wetland.
The Michigan Supreme Court denied the application for leave to appeal in January 2014 after hearing oral arguments. Justice Stephen J. Markman concurred, but wrote that the Legislature should address the issue to prevent uneven enforcement of regulatory offenses.
“The Legislature might wish to consider with care whether the unfettered discretion of agencies and prosecutors to select among multiple available punishments for the same criminal offense should be limited, just as the sentencing guidelines have already limited the discretion of judges to determine precise criminal sentences,” Markman wrote.
“The criminal consequences of a regulatory violation should not be an afterthought on the part of the Legislature in a regulatory enactment, and it cannot be an aspect of such a scheme left to an agency’s determination; rather, it should be the subject of as much definition as more traditional criminal statutes.”
The bill drew support from a variety of groups, including the Mackinac Center for Public Policy and the American Civil Liberties Union of Michigan.
State Rep. Ed McBroom, R-Vulcan, sponsored the legislation after learning more about the mens rea issue from colleagues. A dairy farmer in the Upper Peninsula, he is aware of challenges faced by small businesses in meeting regulations.
“I was well acquainted with people being made criminals inadvertently,” he said. “This is a big problem that goes on.”
McBroom cited a case where someone faced charges for picking up a large Petoskey stone.
His bill only covers laws where intent is not addressed by adding a minimum standard.
“I think it does a pretty good job – we wrote it very broad,” he said, adding that Markman’s comments were helpful in providing direction.
McBroom said it’s an avenue to address a “lazy legislative process” of granting too much authority to the regulators, which he sees as creating “almost a fourth branch of government.”
He said the Legislature gets blamed for regulations that it did not create.
As common laws have been codified into statutes, they have not always specifically included mens rea requirements, which often leads to a strict liability interpretation, according to a legislative analysis of the bill by the House Fiscal Agency.
“Strict liability is appropriate for some conduct that common sense would make obvious would or should be prohibited and for those that are clearly wrong in and of themselves, e.g., rape, murder, robbery, theft, and burglary,” the analysis states. “Over the past few decades however, many, if not most, statutory prohibitions enacted that result in a penalty are more regulatory in nature. Michigan has over three thousand criminal offenses.
“Most of these prohibitions lack a mens rea, leaving courts to guess at the legislature’s intent as to the level of culpability and subjecting otherwise good people who may have made a good faith mistake to becoming convicted criminals.”
An example cited in the analysis is a woman accused of operating an illegal day care facility — even though she wasn’t paid and only watched children for a short period between when her friends left for work and the school bus arrived.
Michael J. Reitz, executive vice president of the Mackinac Center for Public Policy, agreed increased regulations warranted a legislative fix.
“Criminal prohibitions have increasingly been used for regulatory purposes — attaching criminal penalties,” he said. “As a result, well-meaning individuals can be caught in criminal investigations or prosecutions without realizing their conduct was unlawful.”
The legislation is an effort to fill in a gap that has been a problem in Michigan law, said Mark P. Fancher, staff attorney for the Racial Justice Project of the American Civil Liberties Union of Michigan.
If a statute is silent on intent, it creates a situation where people unknowingly break the law, Fancher said.
“There is an opportunity for the court to take a look if people intended to commit a crime or not,” he said.
According to an analysis conducted by the Mackinac Center, 26 percent of felonies and 59 percent of misdemeanors do not explicitly provide the necessary culpable mental state for a conviction, Reitz said.
“HB 4713 addresses this by preserving the ability of the Legislature to enact strict liability crimes, so long as it articulates an intent to do so,” said Reitz, who is an attorney.
As for why this issue was not addressed sooner, Fancher said, “It could have been inattention to the problem by the Legislature or regulatory agencies.”
Fancher said “only time will tell” if the new law fully addresses the issue.
“It’s certainly a step in the right direction,” he said.
While it may seem unusual for the Mackinac Center and the ACLU to find common ground, this isn’t the first time the organizations have worked together.
“The Mackinac Center and ACLU collaborate on a number of issues. Most recently, HB 4713, which attracted a broad array of support from the Michigan Chamber,
NFIB of Michigan, the Criminal Defense Association of Michigan and the U.S. Justice Action Network,” Reitz said. “The Mackinac Center and ACLU have also collaborated on civil asset forfeiture reform and open government reform.”
Fancher called it part of an “emerging and encouraging effort” to take a general look at the criminal justice system.
In the case involving the wetland in Sparta, the Department of Environmental Quality investigated in 2006 whether Taylor’s parking lot expansion intruded upon a wetland. The agency did not conclude he did so until much later, according to the high court order.
“They got a warrant and they inspected the place. It took them a year to decide he intruded into a wetland,” said Dennis C. Kolenda, who handled the appeal and is of counsel to Dickinson Wright PLLC.
Taylor was ordered to restore the wetland but decided to continue with the project, saying the area was not a protected wetland. He said environmental engineers monitoring the project did not mention the presence of a wetland and it was not immediately apparent to a DEQ investigator.
Most of the wetland is still there and the portion at issue in this case is very small, Kolenda said.
Taylor was convicted of two offenses and ordered to pay more than $8,000.
Lack of intent is key in the case as Taylor didn’t know the area in question was part of a wetland when the project began, Kolenda said.
“As a matter of constitutional law, intent is required,” he said. “There was plenty of reason in this case to think he did not know.”
Kolenda said he doesn’t have a problem with regulatory offenses being prosecuted as criminal matters if people knew they were breaking the law.
As for the legislation, Kolenda said he is glad to see an effort to address the issue but he doesn’t see it making a significant impact due to its “obtuse” wording.
“I don’t think it will make any difference whatsoever,” he said. “If anything, it makes things worse.”
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