State v. Spaulding

LIPEZ, Justice,

with whom CLIFFORD, Justice, joins, dissenting.

[¶ 14] I must respectfully dissent. The Court imposes an unduly restrictive meaning on 17-A M.R.S.A. § 456(1)(A) because of its misreading of the words “received” and “tampering.”

[¶ 15] The Court observes that section 456 addresses documents “received or kept by” the government, and construes these words to mean that Spaulding could only be charged with a violation of section 456 if the application she completed was already a public record in the possession of the government. By its terms, section 456 is not limited to tampering with “any record, document or thing” that is already a public record. The statute proscribes knowingly making “a false entry in, or false alteration of any record, document or thing belonging to, or received or kept by the government....” The words “belonging to” and “kept” describe a “record, document or thing” that is already a public record in the possession of the government. If the word “received” also refers to such a “record, document or thing,” it is redundant. No word in a statute may be treated as surplusage if a reasonable construction supplying meaning and force is otherwise possible. See Struck v. Hackett, 668 A.2d 411, 417 (Me.1995). The word “received” only has independent meaning in a case such as this, where the false entry is made on an application for a government service, and the application with a false entry is then given to the government. Knowingly making the false entry is not a crime until the document is “received” by the government. The Court’s redundant reading of the word “received” is contrary to a basic princi-*382pie of statutory interpretation and finds no support in the plain language of the statute.

[¶ 16] In its discussion of the word “tampering” in section 456, the Court states that “the defining element of ‘tamper’ is the alteration or change of an existing document. Spaulding did not alter or change information on a document; she incorrectly represented that she had no prior criminal convictions on her CNA Registry application.” In reaching this conclusion about the significance of the word “tampering” the Court relies on the 1898 case of Keefe v. Donnell, 92 Me. 151, 42 A. 345, and a dictionary definition. Those sources offer scant support for the Court’s conclusion.

[¶ 17] In Keefe v. Donnell, the Court decided that a town clerk faced with a recount challenge could open a package of sealed ballots in his possession without offending an 1891 election statute that forbade a clerk and all other persons to “abstract from or in any manner tamper with” such packages. The Court’s reference to the word “tampering” in a criminal statute was an aside to emphasize that the word “tamper” as used in the 1891 election statute deals with improper interference rather than the legitimate “tampering” requested of the clerk for the purpose of a ballot recount. The Court’s point was a simple one. Tampering suggests wrongdoing. The Court’s discussion of the word “tamper” as used in this 1891 election statute is irrelevant to the import of the word in a criminal code adopted in 1975.

[¶ 18] The dictionary definition cited by the Court is only one of many dictionary definitions of tamper. For example, the American Heritage Dictionary contains these definitions: “to interfere in a harmful manner ...; to meddle rashly or foolishly ...; to bring about an improper situation or condition by clandestine means_” American Heritage Dictionary 1241 (2d college ed. 1985). “To alter improperly,” in the sense of the alteration of the information on a document or text, is only one of many meanings of the word tamper.

[¶ 19] Moreover, by asserting that the defining element of “tamper” is the alteration or change of an existing document, the Court ignores that portion of 17-A M.R.S.A. § 456(1)(A) which states that “a person is guilty of tampering with public records or information if he ... knowingly makes a false entry in ... any record, document or thing belonging to, or received or kept by the government,_” (emphasis added). That “false entry” language is the language relied upon by the State in its criminal complaint against Spaulding:

On or about March 20,1995, in the City of Augusta, County of Kennebec, State of Maine, DONNA M. SPAULDING, did knowingly make a false entry, specifically by placing a check mark beside the word “no” in response to the question “Have you ever been convicted of a crime?”

The complaint does not refer to the alternative “or false alteration” language of the statute. By knowingly making a false entry in the application that she submitted for placement on the Maine Registry of Certified Nursing Assistants, Spaulding violated the “false entry” prohibition of 17-A M.R.S.A. § 456(1)(A).

[¶ 20] In concluding that section 456 does not apply to the conduct of Spaulding, the Court also relies unduly on the provision of 17-A M.R.S.A § 453(1)(A) that punishes for “unsworn falsification” an individual who makes a written false statement on “a form conspicuously bearing notification authorized by statute or regulation to the effect that false statements made therein are punishable.” It is true that the application submitted by Spaulding did not contain such a notification. Therefore, she could not be prosecuted for a violation of section 453(1)(A).4 By its terms (the requirement of *383a form bearing a notification authorized by statute or regulation), the scope of section 453(1)(A) is much narrower than the scope of section 456(1)(A), which applies broadly to a person who “knowingly makes a false entry in ... any record, document or thing_” (emphasis added). There is no inharmonious or inconsistent result in the application of the broader statute to Spaulding’s conduct, even though that conduct involved a government form which might have borne the notification required by section 453(1)(A). The Court essentially reads into the broad language of section 456(1)(A) a “government forms” exception on. the basis of section 453(1)(A). There is no justification for that rewriting of the statute.

[¶ 21] Indeed, a further analysis of section 453(1)(B) emphasizes that an overlap between section 453 and section 456 is basic to the statutory scheme. Section 453(1)(B)(1) punishes the making of any written false statement with the intent to deceive a public servant in the performance of his official duties. Section 453(1)(B)(2) punishes anyone who, with the intent to deceive a public servant in the performance of his official duties, “knowingly creates, or attempts to create, a false impression in a written application for any pecuniary or other benefit by omitting information necessary to prevent statements therein from being misleading.” Section 456(1)(A) requires a different culpable mental state by punishing a person who “knowingly” makes a false entry in any record, document or thing belonging to, or received or kept by the government. The State could have prosecuted Spaulding pursuant to section 453(1)(B)(1) or (1)(B)(2). The availability of these options did not preclude the State from proceeding pursuant to section 456(1)(A) which, by its plain terms, also applies to the conduct of Spaulding.

[¶ 22] There is nothing unfair or illogical in the applicability of more than one criminal statute to the conduct of an individual. Where different proof is required for each offense, a single act may violate more than one criminal statute. See Rosenberg v. United States, 346 U.S. 273, 294, 73 S.Ct. 1152, 1163, 97 L.Ed. 1607(1953) (Clark J., concurring) (“Where Congress by more than one statute proscribes a private course of conduct, the Government may choose to invoke either applicable law: ‘At least where different proof is required of each offense, a single act or transaction may violate more than one criminal statute.’ ”) (quoting United States v. Beacon Brass Co., 344 U.S. 43, 45, 73 S.Ct. 77, 78-79, 97 L.Ed. 61 (1952)); accord Kindred v. State, 254 Ind. 127, 258 N.E.2d 411, 412-13 (1970) (citing Von Hauger v. State, 252 Ind. 619, 251 N.E.2d 116, 118 (1969)); State v. Evans, 153 Mont. 303, 456 P.2d 842, 843 (1969) (citing State v. Lagerquist, 152 Mont. 21, 445 P.2d 910, 915 (1968)). In this case, the same conduct may violate both section 453 and section 456, and the State is entitled to prosecute under either statute at its discretion in the absence of a clear and manifest legislative intent to the contrary. See State v. Booke, 178 Mont. 225, 583 P.2d 405, 408 (1978); State v. Moore, 174 Mont. 292, 570 P.2d 580, 584 (1977). There is no such clear and manifest contrary intent.5 I would affirm the judgment of the court.

. There is the suggestion in the Court’s opinion that it is unfair to punish Spaulding criminally in the absence of a notification on the application that she could be prosecuted criminally for any false entry. Although it is true that the application filled out by Spaulding did not warn of possible criminal penalties, the document did advise her of the importance of honest answers:

The Maine Registry of Certified Nursing Assistants shall deny any application for placement on the “Registry” that contains misrepresentation(s) or in any way attempts to obtain placement on the "Registry” by deceitful or fraudulent means. Any applicant who is found to have gained placement on the "Registry” based upon an application containing known *383misrepresentation(s) or fraudulent or deceitful means shall be removed from the "Registry."

After this warning, the following language appears above the signature line on the application: "I understand the above paragraph and state the information provided is accurate to the best of my knowledge.” The application unmistakably advised Spaulding of her obligation to provide accurate information, and of the State’s reliance on that accuracy.

. The Court finds such an intent in a 1972 note of the Massachusetts Revision Commission which proposed a section of the Massachusetts Criminal Code which became the model for section 456. That note reflects a concern for the protection of public records already apparent in the plain language of section 456. That note does not limit the applicability of section 456 to false entries in documents that are already public records, and the note cannot preclude the applicability of a statute whose plain language proscribes knowingly making a false entry in a document received by the government. The Court’s analysis continues to reflect the faulty premise that there is a lack of harmony in a legislative *384scheme if two criminal statutes involving different elements are applicable to a set of facts. There is no such lack of harmony. ' The Court uses scanty legislative history to resolve a nonexistent problem.