State v. Falcone

SILVER, J., with whom, SAUFLEY, C.J., and DANA, J., join,

dissenting.

[¶ 12] I respectfully dissent from the majority’s determination that the term “domicile,” 36 M.R.S. § 5102(5)(A) (2005), is not unconstitutionally vague when it is read within the context of the tax code and when considering its nearly two centuries of use in our jurisprudence. Because I believe that the term “domicile” is inadequately defined, leaving people “of common intelligence [to] necessarily guess at its meaning,” State v. Reed, 345 A.2d 891, 894 (Me.1975) (quotation marks omitted), I would find that basing criminal sanctions on section 5102(5)(A) violates the defendants’ right to due process of law in violation of the Fourteenth Amendment of the United States Constitution and article I, section 6-A of the Maine Constitution.

[¶ 13] It is an essential element of due process that crimes be defined with definiteness. Knowlton v. State, 257 A.2d 409, 409 (Me.1969). The bedrock principle underlying this truism “is that all are entitled to be informed as to what the state commands or forbids and no one should be required, at peril of life, liberty, or property, to speculate as to the meaning of penal statutes.” Id. at 410 (quotation marks omitted). Accordingly, we have struck down on vagueness grounds a defendant’s condition of probation that required him to “cooperate fully to the satisfaction of the probation officer” because the defendant, without knowledge of “the specific nature of the requisite cooperation,” could not *145know which behaviors would lead to the violation of the provision and thus to a “loss of his conditional liberty.” State v. Cote, 539 A.2d 628, 628-29 (Me.1988); see also State v. Aucoin, 278 A.2d 395, 396 (Me.1971) (declaring a city ordinance prohibiting “loitering” to be unconstitutionally vague because use of the undefined prohibition “as a criterion of criminal conduct, provides an ‘incomprehensible standard’ ... to delimit a class of human behavior which shall be the subject of punishment”); Reed, 345 A.2d at 893-94.

[¶ 14] Here, the parameters of the defendants’ required conduct are equally ill-defined. “Resident individuals” of Maine are required to file Maine income tax returns. 36 M.R.S. § 5220(1) (2005). A “resident individual” is defined as either an individual “[w]ho is domiciled in Maine,” 36 M.R.S. § 5102(5)(A), or an individual “[w]ho is not domiciled in Maine, but maintains a permanent place of abode in this State and spends in the aggregate more than 183 days of the taxable year in this State,” id. § 5102(5)(B) (2005). As the Court has pointed out, what it means to be “domiciled” in Maine is not defined in the tax code. See State v. Greenleaf, 2004 ME 149, ¶ 34, 863 A.2d 877, 885 (“All of the relevant terms [of 36 M.R.S. §§ 5102, 5220, 5330 (2005)] are adequately defined within the tax code, except for the term domicile.”); Op. Me. Att’y Gen. 30-38 (Feb. 15, 1980) (recognizing that “Title 36 contains no definition of either domiciliary or domicile”).

[¶ 15] Unlike the majority, I believe that domicile has not been sufficiently defined by our jurisprudence to insulate it from constitutional infirmity. See State v. Flint H., 544 A.2d 739, 742 (Me.1988) (holding that the numerous cases interpreting “aiding and abetting” helped to save it from unconstitutional vagueness). We ostensibly defined domicile in a 1982 paternity case. See Margani v. Sanders, 453 A.2d 501, 503 (Me.1982). At issue in Margani was the District Court’s jurisdiction over the defendant, which required an examination of whether he was a “domiciliary of the State of Maine,” triggering the court’s personal jurisdiction over him. Id. Before setting forth the definition of domicile, we began an examination of the term by noting that domicile is a “somewhat elusive concept which is often confused with the related yet separate concept of ‘residence.’ ” Id. (emphasis added). We then proceeded to “define” domicile, as the majority does today, as the confluence of two elements: “residence and intent to remain.” 5 Id. Moreover, we noted that the “elusive concept” of domicile is “a mixed question of fact and law.” Id. at 503, 504.

[¶ 16] Prior to Margani, we had discussed domicile, but again in the context of a court’s civil jurisdiction over a defendant. Belanger v. Belanger, 240 A.2d 743, 746 (Me.1968). In Belanger, we noted:

The fact that domicil is so dependent upon intent, cases dependent upon domi-cil present peculiar difficulties. As in other cases in which intent is relevant, it is supported by statement of the person whose intent is in issue and proof of other facts from which intent may properly be inferred. The factual circum*146stances may speak louder than the words.

Id.; see also Gilman v. Gilman, 52 Me. 165, 174-77 (1863) (discussing the difficulties of defining domicile); Plant v. Harrison, 36 Misc. 649, 74 N.Y.S. 411, 414 (N.Y.Sup.Ct.1902) (stating that the facts of prior domicile cases are of “slight assistance” and definitions of domicile are “unsatisfactory”); Restatement (Second) of Conflict of Laws: Domicil of PeRson Having Two Dwelling Places § 20 special note on evidence for establishment of a domicil of choice (1971) (“It may be difficult to predict a court’s decision as to the location of the domicil when the person’s contacts are more or less equally divided between two or more states.”); cf. Lea Brilmayer, Interstate Preemption: the Right to Travel, the Right to Life, and the Right to Die, 91 Mich. L. Rev. 873, 884 n. 45 (1993) (“The vagueness of the domicile test potentially submits the estate to multiple taxation.”).

[¶ 17] Our previous cases discussing domicile add nothing to an understanding of this “elusive concept” other than merely repeating the general rule that the majority merely repeats today. Despite the unclear guidance from this very Court, as the Superior Court correctly noted, “taxpayers in 1997-2002 ... were asked to make a legal determination that courts of law found elusive, intensely circumstantial, and fact-specific.” The limited guidance provided by this Court as to what it means to be domiciled in Maine is not sufficiently definite to inform a person of ordinary intelligence what it means to be domiciled in this State, i.e., exactly what factors are important in making this determination and the relative weight to be given those factors.

[¶ 18] In an attempt to figure out what it means to be domiciled in Maine, a person of ordinary intelligence who did not work or live in Maine year-round would be forced, after finding no provision defining domicile in the Maine Revised Statutes, to consult the volumes of the Atlantic Reporter and, possibly, the old Maine Reporter, to try to locate cases discussing domicile. But that person of ordinary intelligence would face a large obstacle in that there are no tax or criminal cases that answer the question or are otherwise useful in helping him or her avoid criminal prosecution.6 Then, that person of ordinary intelligence would be forced to visit a tax attorney or other professional to help him or her with this legal determination7 — because after all, domicile is, in part, a legal determination. See Margani, 453 A.2d at 504. Nowhere in this process, however, does that person of ordinary intelligence become informed about what conduct the State prohibits. Given the current state of our law, any such answers are merely speculation and the penalty for guessing wrong is imprisonment.

[¶ 19] Maine is one of only a minority of states that does not provide guidance for taxpayers regarding domicile either statutorily or through duly promulgated regulations. Some states take the opposite approach and provide taxpayers with a list of factors used to determine domicile. It was in this context that the constitutionality of the Minnesota taxpayer domicile rule was upheld in the face of arguments that it was *147unconstitutionally vague. State v. Enyeart, 676 N.W.2d 311, 319 (Minn.Ct.App.2004). Minnesota provides its taxpayers with a list of twenty-six factors that courts must consider when determining whether someone intended to make the state his or her domicile.8 Id. at 319-20. The Minnesota Court of Appeals noted that “[a]l-though the domicile rule does not provide a magic formula for determining when a taxpayer has established an intention to change domicile — relying instead on an exhaustive list of determinative factors — it specifies a standard of conduct that ordinary people of reasonable intelligence can understand.” Id. at 321 (emphasis added).

[¶ 20] In addition to a clear lack of judicial guidance or statutory authority, the Maine Revenue Services, during the period of 1997-2002, had in place no rules or instructions which an individual could use to aid him or her in making a decision about whether he or she was a domiciliary of Maine and, accordingly, whether that *148individual was required to file a Maine income tax return for income not otherwise apportioned to this State. Because there was no guidance for Maine taxpayers at the time of the conduct at issue in these cases, I believe that section 5102(5)(A) is unconstitutionally void for vagueness. The majority’s mere restatement of a vague legal test, without more, is not the type of “reasonable construction” sufficient to save the statute. See State v. Witham, 2005 ME 79, ¶ 7, 876 A.2d 40, 42 (stating that “legislation should not be held invalid on the ground of uncertainty if susceptible of any reasonable construction that will support it”) (quotation marks omitted); State v. Eaton, 577 A.2d 1162, 1165 (Me.1990). Such a construction leaves people of common intelligence to guess at the meaning of domicile and subject themselves to criminal sanctions if they guess wrong. Thus, I believe that the statute does not pass constitutional muster and I would affirm the dismissal of the indictments.

. In Margani v. Sanders, we examined the factual findings supporting the trial court's determination that the defendant was a Maine domiciliary. 453 A.2d 501, 504 (Me.1982). We did not then have occasion, however, to note the weight to be given to the factors supporting the court’s finding, i.e., whether one factor was more important than another or what combination of factors would actually support a finding of domicile. Moreover, we did not have occasion to examine whether the facts presented there would support a finding of domicile in a criminal case where the burden of proof is upon the State to prove every element of an offense beyond a reasonable doubt.

. As noted above, the few civil jurisdiction cases discussing the concept add little to an understanding of it.

. This in particular is a burden we have never placed on a criminal defendant. Furthermore, in the absence of further guidance from the Legislature or this Court, such professional advice is merely a guess as to what factors the Maine Revenue Services or, more importantly, a court, would consider decisive in making a determination of domicile.

. Those factors include:

A. location of domicile for prior years;
B. where the person votes or is registered to vote, but casting an illegal vote does not establish domicile for income tax purposes;
C. status as a student;
D. classification of employment as temporary or permanent;
E. location of employment;
F. location of newly acquired living quarters whether owned or rented;
G. present status of the former living quarters, i.e., whether it was sold, offered for sale, rented, or available for rent to another;
H. whether homestead status has been requested and/or obtained for properly tax purposes on newly purchased living quarters and whether the homestead status of the former living quarters has not been renewed;
I. ownership of other real property;
J. jurisdiction in which a valid driver’s license was issued;
K. jurisdiction from which any professional licenses were issued;
L. location of the person’s union membership;
M. jurisdiction from which any motor vehicle license was issued and the actual physical location of the vehicles;
N. whether resident or nonresident fishing or hunting licenses purchased;
O. whether an income tax return has been filed as a resident or nonresident;
P. whether the person has fulfilled the tax obligations required of a resident;
Q. location of any bank accounts, especially the location of the most active checking account;
R. location of other transactions with financial institutions;
S. location of the place of worship at which the person is a member;
T. location of business relationships and the place where business is transacted;
U. location of social, fraternal, or athletic organizations or clubs or in a lodge or country club, in which the person is a member;
V. address where mail is received;
W. percentage of time (not counting hours of employment) that the person is physically present in Minnesota and the percentage of time (not counting hours of employment) that the person is physically present in each jurisdiction other than Minnesota;
X. location of jurisdiction from which unemployment compensation benefits are received;
Y. location of schools at which the person or the person’s spouse or children attend, and whether resident or nonresident tuition was charged; and
Z. statements made to an insurance company, concerning the person’s residence, and on which the insurance is based.

Minn. R. 8001.0300(3) (2006). See also Conn. Agencies Regs. § 12-701(a)(l)-l (2006) (listing twenty-eight non-inclusive factors for an individual to use to determine Connecticut domiciliary status); Iowa Admin. Code r. 701-38.17(422) (2006) (creating rebuttable presumption of domiciliary status if one of five elements is met and providing additional list of ten relevant facts); N.C. Admin. Code tit. 17, r. 6B.3901 (2006) (listing sixteen relevant factors for determining domicile); Ohio Admin. Code § 5703-7-16 (2006) (listing factors not to be and to be considered in making a domicile determination).