State v. Evans

Wiggins, J.

¶33 (dissenting) — The legislature appropriately limited victims of identity theft to natural persons by using the language “another person, living or dead” in RCW 9.35.020(1) to refer to identity theft victims. Corporations do not live or die but come in and out of existence through the statutorily defined means of incorporation and dissolution. Other statutes that define aspects of life or death refer consistently to natural processes, illustrating that the legislature cannot realistically be said to speak of corporations in metaphors of life or death. Also, several other provisions of the statutory scheme governing identity crimes and pertinent legislative history demonstrate a sustained focus on natural persons, not corporations, as victims of identity theft. Even if the legislature did intend to include corporate victims of identity theft, it did not express that intent clearly. At the very least, the identity theft statute is ambiguous in this regard and requires the application of the rule of lenity in Derrick Robert Evans’s favor. This court should reverse the Court of Appeals and vacate Evans’s conviction of identity theft for stealing, forging a name on, and cashing a corporate check. I dissent.

DISCUSSION

I. The phrase “person, living or dead” in RCW 9.35.020(1) is meant to exclude corporations

¶34 The definition of “person” for the purpose of the identity theft statutes includes corporations only “where relevant.” RCW 9A.04.110(17); RCW 9.35.005(4). The legislature’s inclusion of the phrase “another person, living or *209dead” in RCW 9.35.020(1) in the pertinent provision of the identity theft statute expresses an intent to exclude corporations as not relevant because corporations are neither living nor dead. Life and death are natural processes that do not apply to corporations, irrespective of the occasional analogy or colloquialism present in our case law. This court should reject a reading of RCW 9.35.020(1) that supports the inclusion of corporations as “person [s], living or dead” whose identities are stolen.

A. The statutes governing corporations do not refer to corporations in terms of being alive or dead

¶35 Corporations exist in Washington only by virtue of the statutes that govern them, whether Title 23B RCW, the Washington Business Corporation Act (WBCA); chapter 24.03 RCW, the Washington Nonprofit Corporation Act (WNPCA); or Title 35 RCW, regarding municipal corporations. These enactments are thus the most appropriate places to determine whether corporations should ever be considered living or dead. Not once in the WBCA, WNPCA, or Title 35 RCW are corporations referred to as alive, living, having life, dead, deceased, or having died. Rather, corporations come into existence by incorporation and cease to exist through dissolution.5 Therefore, they should not be considered living or dead persons under RCW 9.35.020(1).

¶36 Business corporations begin their existence by becoming incorporated. RCW 23B.02.030(1) provides that “the corporate existence begins when the articles of incorporation are filed” with the secretary of state. The same is true of nonprofit corporations. See RCW 24.03.150. Unless the articles of incorporation provide otherwise, for-profit and nonprofit corporations have “perpetual existence and succession in [their] corporate name.” RCW 23B.02.020(3)(c); RCW 23B.03.020(1); see also RCW 24.03.035(1). Thus, corporations remain incorporated, not living. They come into *210existence not by being alive but upon the filing of a specific document with the secretary of state.

¶37 During their existence, corporations do not possess the independence of living beings. Rather, “[a]ll corporate powers [are] exercised by or under the authority of the corporation’s board of directors.” RCW 23B.08.010(2)(a); see also RCW 24.03.095 (“The affairs of a [nonprofit] corporation shall be managed by a board of directors.”). Similarly, corporate affairs are “managed under the direction of [a corporation’s] board of directors, which [has] exclusive authority as to substantive decisions concerning management of the corporation’s business.” RCW 23B.08.010(2)(b). A corporation is entirely controlled by its board of directors rather than by its own choices or instincts. In this way, corporations are also distinct from living persons.

¶38 Given their perpetual existence, corporations do not die. Instead, someone must dissolve them. Dissolution of business corporations typically occurs in one of two ways. First, the corporation’s board of directors “may propose dissolution for submission to the shareholders.” RCW 23B.14.020(1). Two-thirds of the authorized shareholders then must approve the proposed dissolution. RCW 23B-.14.020(5). Second, the secretary of state has the power to administratively dissolve corporations for failure to pay license fees, to deliver the initial or annual report to the secretary of state, or to maintain a registered agent. RCW 23B.14.200(l)-(3). Similarly, nonprofit corporations are dissolved voluntarily by a vote of the members or resolution of the board of directors, RCW 24.03.220(l)-(2), or involuntarily by decree of the superior court, RCW 24.03.250, .266. Corporate dissolution that occurs at the vote of shareholders or directors, or by the hand of the secretary of state or a superior court judge, does not remotely resemble death. After all, even upon dissolution, a corporation “continues its corporate existence ... to wind up and liquidate its business *211and affairs.” RCW 23B.14.050U); see also RCW 24.03.245.6 This can hardly be said of living beings after they die.

¶39 Neither can municipal corporations be conceived of as living or dead. Municipal corporations are incorporated when a majority of the votes cast by residents favor incorporation. RCW 35.02.120. During its existence, a municipal corporation is run by a commission consisting of a mayor, a commissioner of finance and accounting, and a commissioner of streets and public improvements, RCW 35.17.010, that “determine [s] what powers and duties are to be performed in each department,... prescribe [s] the powers and duties of the various officers and employees and make[s] such rules and regulations for the efficient and economical conduct of the business of the city ...” RCW 35.17.090. “Cities and towns may disincorporate,” RCW 35.07.010, upon a petition for disincorporation signed by a majority of registered voters, RCW 35.07.020. A receiver is then appointed to wind up affairs. RCW 35.07.150. Like business and nonprofit corporations, municipal corporations cannot, under any stretch of the imagination, be considered living or dead.

¶40 The majority grasps at straws to demonstrate that corporations may be considered living or dead for the purpose of the identity theft statute, devoting some two pages of its opinion to citing instances where this court and other courts have metaphorically referred to corporations as such. See majority at 197-98. While courts might use analogies to describe business organizations on occasion, the fact that the statutes governing corporations do not speak in terms of life or death undermines the majority’s reading of RCW 9.35.020(1) to include corporations within a class of “personfs], living or dead.” The more appropriate *212reading of RCW 9.35.020(1) limits the victims of identity theft to natural beings.

B. Where the legislature elsewhere defines “life”or “death,” it refers to the natural processes of natural beings

¶41 In other statutes, the legislature has defined words such as “living” or “dead” to refer solely to the functions of natural beings. For the purposes of the criminal mistreatment chapter, chapter 9A. 42 RCW, the legislature has defined the “ ‘[b]asic necessities of life’ ” as “food, water, shelter, clothing, and medically necessary health care ....” RCW 9A.42.010(1). This definition of life’s necessities contemplates that only natural beings are alive and clearly excludes corporations. Similarly, statutes regarding indigent defense services provide that ‘“[b]asic living costs’ means the average monthly amount spent by the defendant for reasonable payments toward living costs, such as shelter, food, utilities, health care, transportation, clothing, loan payments, support payments, and court-imposed obligations.” RCW 10.101.010(2)(d). This reference to “living costs” demonstrates a legislative understanding that only natural beings, not business organizations, are alive.

¶42 Other statutes clarify that death too is intended to refer to the natural occurrence experienced by living beings. In the personal property statutes, an “ ‘[individual’ ” is defined as a “natural person, living or dead,” RCW 63.60.020(4), and a “ ‘[d]eceased individual’ means any individual . . . who has died within ten years before January 1, 1998, or thereafter,” RCW 63.60.020(1). The term “fetal death” is defined in the vital statistics chapter as “any product of conception that shows no evidence of life after complete expulsion or extraction from its mother.” RCW 70.58.150. “ ‘Evidence of life,’ ” by contrast, “include[s] breathing, beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.” Id. These statutes employing death in definitions provisions refer only to living beings that experience the natural, inevitable process of death.

*213¶43 These examples illustrate that the legislature does not tend to use metaphors of life or death to refer to inanimate objects or organizations. Rather, its uses of words like “living” or “dead” refer to the natural processes of living organisms. These references call into serious doubt any interpretation of “person, living or dead” in RCW 9.35-.020(1) that includes nonliving, inanimate objects such as corporations.

II. Several other sections of the identity theft chapter indicate the legislature’s intent to exclude corporations as victims of identity theft

¶44 In addition to the phrase “living or dead” in RCW 9.35.020(1), other provisions of the identity crimes scheme of chapter 9.35 RCW strongly suggest that the legislature did not intend to make corporations the direct victims of identity theft.

¶45 RCW 9.35.030(1) makes it “unlawful for any person to knowingly use a means of identification or financial information of another person to solicit undesired mail with the intent to annoy, harass, intimidate, torment, or embarrass that person.” Corporations, being inanimate and unfeeling, are incapable of being annoyed, harassed, intimidated, tormented, or embarrassed. It seems odd that the legislature would have included corporations in the definition of “another person, living or dead” to make them victims of identity theft but would have excluded them in the very next section of chapter 9.35 RCW from being victims of undesired mail solicitation.

¶46 The legislature has also defined “victim” for the purposes of the identity crimes chapter and has provided victims with a way to obtain information from businesses who may have entered into a transaction with a perpetrator of identity theft.7 But in order for victims to obtain this *214information, the statute requires victims to provide “proof of positive identification,” including “[t]he showing of a government-issued photo identification card . . . .” RCW 9.35.040(2)(a). Victims must also provide a “written statement from the state patrol showing that the state patrol has on file documentation of the victim’s identity pursuant to the personal identification procedures in RCW 43-.43.760.” RCW 9.35.040(2)(c). RCW 43.43.760(1) and (2) contain procedures for victims to request and obtain “an impression of [their] fingerprints.” (Emphasis added.) Needless to say, corporations have no fingerprints or government-issued photo identification cards. Had the legislature intended corporations to be victims of identity theft, it would not have excluded corporations from the only provision of chapter 9.35 RCW that assists victims in investigating and preventing occurrences of identity theft.

¶47 In short, other provisions of chapter 9.35 RCW demonstrate that the legislature intended only natural beings to be victims of identity theft.

III. The statutory and legislative history also point to the exclusion of corporate victims of identity theft

¶48 The various amendments to chapter 9.35 RCW and related legislative history support the exclusion of corporate victims of identity theft. When the legislature enacted these statutes, and each time it has revisited them, it has remained focused on natural persons, not business associations, as the victims of identity theft.

A. 1999 Statute

¶49 Under the original identity theft statute enacted in 1999, it appears that the legislature did intend to include *215businesses in the definition of “person,” at least as persons capable of perpetrating the crime of identity left. See Laws of 1999, ch. 368, § 2(7) (“If the person violating this section is a business that repeatedly violates this section, that person also violates the consumer protection act, chapter 19.86 RCW.” (emphasis added)); see also 1999 Final Legislative Report, 56th Wash. Leg., at 49. But while businesses may have qualified as perpetrators of identity theft, there is no indication that they qualified as victims. The original statute prohibited a person from “knowingly us[ing] or knowingly transfer [ring] a means of identification of another person with the intent to commit . . . any felony.” Laws of 1999, ch. 368, § 3. In defining the “ ‘means of identification’ ” of a person, the legislature included the “electronic address or identifier of the individual or any member of his or her family, including the ancestor of such person.” Id. (emphasis added). These references to an individual’s family and ancestors suggest that the legislature did not consider corporations when it defined “means of identification.”

¶50 In the House bill report on Substitute House Bill 1250, the summary of the testimony supporting the bill noted that “[i]t is important that identity theft be defined as a separate crime; often the merchant or the financial institution suffers the loss and the person whose identity is stolen to commit these acts is not considered a victim by law enforcement.” H.B. Rep. on Substitute H.B. 1250, 56th Leg., Reg. Sess., at 2 (Wash. 1999). This portion of the report acknowledges that businesses are harmed by identity theft but seems to consider the interests of businesses separately from the interests of direct victims whose identities are stolen.

¶51 In sum, the 1999 statute and accompanying legislative history may contemplate businesses as persons who perpetrate the crime of identity theft, but not as direct identity theft victims. The 1999 enactment and legislative history thus cannot be read as clearly including corporations as identity theft victims.

*216 B. 2001 Amendments

¶52 In 2001, the legislature revamped the identity theft statutes, inserting new provisions in the identity crimes chapter, chapter 9.35 RCW, that included definitions of “person” and “victim.” Laws of 2001, ch. 217, § l(4)-(5). As discussed above, these definitions were accompanied by provisions that suggested an intent to limit the victims of identity theft to natural persons. The legislative history confirms that the legislature appeared concerned only about consumer victims, not corporate victims, of identity theft.

¶53 The 2001 amendments resulted from a consumer privacy task force formed by the Washington State attorney general. See 2001 Final Legislative Report, 57th Wash. Leg., at 198; S.B. Rep. on Engrossed Substitute S.B. 5449, 57th Leg., Reg. Sess., at 1 (Wash. 2001). The attorney general task force concluded that incidences of identity theft were growing so quickly that “victims need[ed] help in obtaining information to reestablish their identity, deal with creditors, and help assist law enforcement.” 2001 Final Legislative Report, supra, at 198.

¶54 With this focus in mind, the legislature enacted several provisions involving fingerprints and photo identifications, discussed above, that provided a way for identity theft victims to obtain information and gain protection from businesses who had transacted with perpetrators of identity theft. This concern prompted the legislature to clearly place “victims” of identity theft on one side of a transaction and “businesses” on the other. For example, the House bill report notes that “business was quite sensitive to the needs and concerns of victims and the bill strikes a balance between the interests of the two groups. Both victims and businesses are protected.” H.B. Rep. on Engrossed Substitute S.B. 5449, 57th Leg., Reg. Sess., at 5 (Wash. 2001). Similarly, opponents of the bill noted concerns that it “creates disproportionate and inappropriate penalties for *217one of the other victims of identity theft — businesses” S.B. Rep. on Engrossed Substitute S.B. 5449, 57th Leg., Reg. Sess., at 3 (Wash. 2001) (emphasis added). These portions of the legislative history strongly demonstrate that the legislature was concerned with protecting natural persons as direct victims of identity theft and with protecting businesses as indirect victims, but that these were two distinct groups in need of distinct protections.

¶55 The majority contends that the “living or dead” language added to the identity theft statute should support a broad reading of the new amendments that includes corporations. See majority at 202-03. But the insertion of “living or dead” in RCW 9.35.020(1) is consistent with the legislative history that shows that the legislature was focused only on natural persons as identity theft victims. The fact that the legislature distinguished between businesses and victims in its internal reports and memoranda indicates that the legislature was making a similar distinction in the text of the statute.

¶56 The majority also unconvincingly relies on witnesses who testified in support of the 2001 amendments as well as on comments of the “initial proponent” of the bill. Majority at 201-03. Such testimony and comments are simply not good indicators of legislative intent. As the United States Supreme Court has admonished, relying on such testimony gives “unrepresentative committee members — or, worse yet, unelected staffers and lobbyists — both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005); cf. Snow’s Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 291, 494 P.2d 216 (1972) (“While statements and opinions of individual legislators generally are not considered by the courts in construing legislation, statements made in answer to questions on the floor by the chairman of the committee in charge of the bill may be *218taken as the opinion of the committee as to the meaning of the bill.”). The majority’s reliance on lay testimony and the comments of certain legislators does not sufficiently demonstrate the legislature’s clear intent to include corporations as victims of identity theft.

¶57 Contrary to the majority’s assertion that the 2001 amendments demonstrate legislative intent to include corporations as potential victims of identity theft, majority at 203, the 2001 legislation points in the other direction. The 2001 amendments and connected legislative history do not support a reading of the identity theft statute that includes corporate victims of identity theft, as discussed above.

C. 2004 and 2008 Amendments

¶58 The legislature again revised the identity theft statutes in 2004 and 2008.8 On both occasions, the legislature added language that appears inconsistent with the inclusion of corporations as victims of identity theft.

¶59 In 2004, the legislature enacted a biometric matching system to reduce fraudulent issuances of driver’s licenses and state identification cards. Laws of 2004, ch. 273, § 1. The legislature indicated that “[t]he most common method of accomplishing identity theft... is by securing a fraudulently issued driver’s license.” Id. In light of this concern, the legislature ordered the Department of Licensing to create a biometric matching system to “allow every person applying for an original, renewal, or duplicate driver’s license or identicard the option of submitting a biometric identifier.” 2004 Final Legislative Report, 58th Wash. Leg., at 120. Given the focus on biometric data to prevent identity theft, the legislature was again concerned only with natural persons as victims of identity theft.

¶60 In 2008, the legislature again revised the identity theft statutes to allow a “person who has learned or *219reasonably suspects that his or her financial information or means of identification has been unlawfully obtained” to obtain a police incident report. Laws of 2008, ch. 207, § 2. The final legislative report pointed out that “identity theft victims must have police reports to freeze their credit, to place long-term fraud alerts on credit reports, and to obtain records of fraudulent accounts from merchants.” 2008 Final Legislative Report, 60th Wash. Leg., at 171. The legislative history also discloses that the amendment requiring a police report was partially responsive to a Federal Trade Commission survey showing that 19 percent of persons surveyed indicated that police refused to take their report of identity theft. Id. The focus on consumers obtaining a police report again demonstrates that the legislature viewed natural persons, not corporations, as the direct victims of identity theft.

¶61 From 1999 to 2008, the legislature' enacted or amended identity theft laws with a focus on everyday consumers — i.e., natural persons — who were victimized by identity theft. This belies the majority’s holding that the legislature intended to include corporations as identity theft victims. We should interpret RCW 9.35.020(1) as excluding corporations from the class of persons victimized by identity theft.

IV. At the very least, the identity theft statute is ambiguous, requiring the application of the rule of lenity

¶62 Even if the legislature did intend to include corporations as victims of identity theft, it did not do so clearly enough to support criminal liability in this case. “ ‘[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.’ ” State v. Tvedt, 153 Wn.2d 705, 711, 107 P.3d 728 (2005) (quoting United States v. Universal C.I.T. *220Credit Corp., 344 U.S., 218, 221-22, 73 S. Ct. 227, 97 L. Ed. 260 (1952)). If a criminal statute “is susceptible to more than one reasonable interpretation, it is ambiguous and, absent legislative intent to the contrary, the rule of lenity requires us to interpret the statute in favor of the defendant.” State v. Coucil, 170 Wn.2d 704, 706-07, 245 P.3d 222 (2010) (citing State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005)).

¶63 Assuming for the sake of argument that it is reasonable to interpret the identity theft statute as including corporations within the class of victims, the statute is susceptible to two reasonable interpretations — one that includes corporate victims and one that does not. This renders the statute ambiguous. The rule of lenity would thus apply, requiring that we interpret the identity theft statute in Evans’s favor. For this reason as well, RCW 9.35.020 must be interpreted to exclude corporations as victims of identity theft.

CONCLUSION

¶64 The text of RCW 9.35.020(1) and of other provisions of the identity crimes statutes of chapter 9.35 RCW supports a conclusion that the legislature did not intend to include corporations as identity theft victims. Tracking the amendments to the identity theft statutes and related legislative history indicates that corporations were excluded from identity theft victimhood. And even if the legislature did intend to include corporations, both interpretations of the statute would be reasonable, making the statute ambiguous and the rule of lenity applicable in Evans’s favor. I would reverse the Court of Appeals and vacate Evans’s conviction.

¶65 I dissent.

Municipal corporations cease to exist through disincorporation. See RCW 35.07.010, .020.

Various other corporate entities exist under Title 24 RCW, such as corporations sole, fraternal societies, and granges. But it is unnecessary to discuss each different type of corporation because these entities, like for-profit and nonprofit corporations, are formed through the signing of incorporation documents. They are not bom, they are not living, and they do not die.

RCW 9.35.005(5) defines “ ‘Mictim’ ” as “a person whose means of identification or financial information has been used or transferred with the intent to *214commit, or to aid or abet, any unlawful activity.” RCW 9.35.040(1) requires persons or businesses “possessing information relating to an actual or potential violation of this chapter, and who may have entered into a transaction... with a person who has used the victim’s means of identification” to “provide [to the victim] copies of all . . . transaction information related to the transaction being alleged as a potential or actual violation of this chapter.”

The legislature also amended the identity theft statutes in 2003, but only “to reorganize criminal provisions ... to clarify and simplify the identification and referencing of crimes.” Laws of 2003, ch. 53, § 1.