State v. Richard Knutson, Inc.

BROWN, J.

(dissenting).

I respectfully dissent from the majority decision. I have no quarrel with the general policy considerations favoring corporate criminal liability. And it is indisputable that past Wisconsin cases have made corporations criminally liable for the acts of their agents. But I am convinced that those past cases were based upon statutes with substantially different wording than the statute in this case.

*112For example, the most often cited illustration favoring corporate criminal liability is Vulcan Last Co. v. State, 194 Wis. 636, 217 N.W. 412 (1928). The corporation desired to have the City of Crandon install waterworks so that the plant of the company would have fire protection. Id. at 637, 217 N.W. at 413. An alderman who was an employee of the company voted against the resolution. Id. at 638, 217 N.W. at 413. The plant superintendent held a meeting of employees in which he stated that any person who voted against the company's interest in the upcoming referendum would be discharged; moreover, the alderman was discharged because of his vote at the council meeting. Id. Vulcan Last was charged with attempting to influence the vote of employees by threatening discharge and was convicted. Id. at 639, 217 N.W. at 413. On appeal, one of Vulcan Last's defenses was that, as a corporation, it could not be convicted of a crime. But the supreme court rejected the claim based upon its reading of the statute. The statute at issue stated in pertinent part: "No person shall, by threatening to discharge a person from his employment..., attempt to influence a qualified voter .. .."Id. (quoting § 103.18, Stats., 1925).

The supreme court noted that the statute prohibited any "person" from attempting to influence a voter in the manner prescribed. Id. at 643, 217 N.W. at 415. The court then ruled that the word "person" in a penal statute means "person in law." Id. at 644, 217 N.W. at 415. The court reasoned that a "person in law" included artificial as well as natural persons. Id. The court also cited a federal case for the proposition that "when a statute in general terms prohibits the doing of an act which can be performed by a corporation, and does not expressly exempt corporations from its provisions, there is no reason why the statute should be construed *113as not applying to them." Id. (quoting United States v. John Kelso Co., 86 Fed. 304, 306 (N.D. Cal. 1898)).

Vulcan Last therefore stands for the proposition that when a statute refers to a "person" or "persons" as the perpetrator, then artificial persons are subject to criminal liability. See id. It also establishes that corporations should be held criminally responsible under a statute employing the words "person" or "persons" unless specifically exempted. See id.

Another example, cited by the State, is Kenosha Unified Sch. Dist. No. 1 v. Kenosha Educ. Ass'n, 70 Wis. 2d 325, 234 N.W.2d 311 (1975). There, the court was concerned with a statute using the word "whoever." Id. at 332, 234 N.W.2d at 314. The court stated:

It appears to be the rule that when the word "whoever" is employed in a statute, it is considered to refer only to "persons," whether natural or corporate, and not to unincorporated associations. [Emphasis added.]

Id. Thus, by extension, the Vulcan Last rule can be said to mean that where a statute uses either the words "person," "persons," or "whoever," then artificial persons as well as natural persons are subject to criminal liability. See id.; Vulcan Last, 194 Wis. at 644, 217 N.W. at 415.

I am satisfied, however, that the instant statute falls outside the Vulcan Last rationale. Here, the statute specifically applies to "whoever" causes the death of "another human being" by negligent operation or handling of a vehicle. See § 940.10, Stats. Clearly, the phrase "another human being" is a referent to the word "whoever." See id. Thus, the pronoun "whoever" is of the same class as its referent — another human being. In my view, the language unambiguously confines the *114word "whoever" to a natural person, not an artificial person. I am further of the view that this language is an express determination by the legislature that only natural persons, not artificial persons, may be held liable under this statute.

I am influenced by the holding in People v. Rochester Ry. & Light Co., 88 N.E. 22 (N.Y. 1909), cited by Knutson. The court there held that a corporation could not be indicted for homicide where the penal code defined homicide as the "killing of one human being by the act, procurement or omission of another." Id. at 24. The court wrote:

We think that this final word "another" naturally and clearly means a second or additional member of the same kind or class alone referred to by the preceding words, namely, another human being, and that we should not interpret it as appellant asks us to, as meaning another "person," which might then include corporations .... It is true that the term "person" used therein may at times include corporations, but that is not the case here.

Id. I acknowledge that this New York case is old, but so is the English language. What was basic syntactic analysis in 1909 would be unchanged in 1995.

Other cases and comments cited by Knutson support my acceptance of the New York court's rationale. In Granite Constr. Co. v. Superior Court, 197 Cal. Rptr. 3, 4 (Cal. Ct. App. 1983), a corporation appealed a manslaughter conviction based upon a statute explicitly defining "person" to include corporations as well as natural persons. The court stated:

This statute does not rule out the prosecution of corporations.... [I]t does not limit itself to natural *115persons by defining the act of manslaughter as the killing "of a human being... by another."

Id. at 5. Our statute employs the language not found in the California statute. I think this case is instructive because it explains when a statute does or does not include corporations.

An American Law Reports annotation also supports the New York court's reasoning. According to the annotation:

In jurisdictions where homicide is defined as the killing of a human being by another human being, the definition itself seems to preclude corporate liability for the crime. However, the courts have a more difficult job of analyzing the law in jurisdictions where "person" is used in place of "human being" in the definition of homicide since "person" may include or exclude corporations.

Nora A. Uehlein, Annotation, Corporation's Criminal Liability for Homicide, 45 A.L.R. 4th, 1021, 1024 (1986) (footnotes omitted). The annotation goes on to cite the reasoning in the New York case as support for commentary. See id. at 1029. I find all of these authorities persuasive and would adopt them in ruling for Knutson.

The majority opinion dismisses the grammatical distinctions between the statute involved in this case and the statutes in cases like Vulcan Last by concluding that it is "not the description of the perpetrator as a 'person'" which governs corporate liability. Majority op. at 100. Rather, it is the public policy of this state to expose corporations to criminal liability whenever a crime is punishable by fine. See id. As I read the majority opinion, what it is saying is that whenever the legislature imposes a fine as one of the alternative *116methods of punishment, it automatically means to subject corporations to criminal liability no matter what the language of the statute is. The word "fine" is the key to corporate exposure, not any other language of the statute.

The majority gets this idea from its reading of State ex rel. Kropf v. Gilbert, 213 Wis. 196, 212, 251 N.W. 478, 484 (1933). The majority cites Kropf to say that "it is now well established that a corporation can be held guilty of crime when it is punishable by a fine." See id.; majority op. at 100. But that is not what the case said. What the case really said was:

Although it is now well established that a corporation can be held guilty of crime when it is punishable by a fine [citing foreign jurisdictions omitted here], it has been repeatedly held that when the only punishment prescribed for an offense is imprisonment, which cannot in the nature of things be inflicted upon it, no information or indictment will lie against it because the law does not permit or require that which is futile.

Id. at 212-13, 251 N.W. at 484 (citations omitted). What the Kropf court was saying is that while other jurisdictions have generally held that a corporation can be held guilty of a crime when it is punishable by a fine, Wisconsin's courts will not hold a corporation guilty if the punishment is imprisonment. This holding is a far cry from ruling that, in Wisconsin, corporations will be held liable if a crime is punishable by a fine. The most that can be said about the Kropf holding is that when a fine is a form of punishment, it is not a futile exercise for the legislature to expose corporations to criminal liability. In my view, Kropf does not resolve the issue in this case; it only begs the question, which is: Did the *117legislature intend to subject corporations to criminal liability under this statute?

Compounding its error, the majority then reasons that since the supreme court has repeatedly held that corporations can be held liable for criminal acts, and since the legislature's criminal code revisions remained silent about corporate criminal liability, therefore the legislature has acquiesced in the supreme court's pronouncements. See majority op. at 101-02. But as I have already pointed out, the supreme court has not made the sweeping pronouncement claimed by the majority. The supreme court's judgments regarding corporate liability are no more and no less than what it initially announced in Vulcan Last. As I have pointed out, the statute in this case differs substantially from the one in Vulcan Last and the reasoning of Vulcan Last cannot be applied here.1

*118The majority admits that my use of the canons of statutory construction is "proper," but complains that I have neglected to consider our prerogative to "disregard grammatical errors or mistakes in statutes in order to give effect to the intent of the legislature." Majority op. at 107 n.10. I am unaware, however, of any information which would lead me to believe that the language of the instant statute is a "grammatical error[] or mistake[]." See id. The statutes were substantially modified from the original 1955 laws in 1987 after extended study by the Judicial Council. The Judicial Council is well known for its scholarship and careful attention to detail. I refuse to believe that the language of the present statute is the result of inadvertence or ignorance of the legislative purpose.

What this debate really comes down to is whether it is desirable that a court avoid the literal meaning of this statute. I acknowledge that there exists a tension between the language of the statute and the announced public policy goal by some of our citizenry that corporations be held to criminal liability for negligent deaths. And I reject the notion that we should never search for the "real" rule lying behind the mere words on a printed page. But when the statute's wording is so clear in its contextural rigidity, the statute has therefore generated an answer which excludes otherwise *119eligible answers from consideration. Unlike the majority, I take the clear wording of the statute seriously. Since the majority has seen fit to quote Justice Oliver Wendell Holmes, Jr., I too quote from a past justice of the nation's highest court. In United States v. Public Util. Comm 'n, 345 U.S. 295, 319 (1953) (Jackson, J., concurring), Justice Robert Jackson wrote: "I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress." My sentiments exactly.

The State argues that the language reflects the legislature's intent to distinguish homicide from suicide. Thus, a person who negligently kills himself or herself cannot be convicted under the statute. The State seemingly posits that this is because the statute should be read to restrict homicide to the killing of "any person except the actor." I acknowledge that in old Europe, a person could be "condemn[ed] ... to death for the crime of having [committed suicide.]" A. Alvarez, The Savage God: A Study of Suicide, 46 (1972). In France, for example, the corpse was hanged by the feet, dragged through the streets, burned and thrown on a public garbage heap. Id. The French came to their senses in 1791 when the new penal code did not mention suicide. Id. at 48. The State's argument appears to be that the legislature thought it necessary to exempt suicides from the criminal statutes. I give the Wisconsin legislature more credit. I think the State's argument is rather remarkable in its attempt to visit this legal idiocy on our legislature. The State cites a draft of the 1950 Legislative Council that spoke to suicide and abortion. But that draft never even got as far as the *118legislative floor. I reject the State's argument as, apparently, the majority has by its silence on the issue. The State further argues that the wording of the statute was an attempt to address abortions and was designed so that a person who negligently terminated a pregnancy could not be charged under the statute. Other than the draft of the 1950 Legislative Council, there is no evidence that the legislature had this intent, although the plain and unambiguous wording of the statute does effectively exempt such a person from criminal liability.