Cite as State of Yap v. Tinngin,
(Yap St. 1996)
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Criminal Case No. 1995-155

I. Introduction
     Defendant in her Motion to Dismiss urges that 30 YSC 405 is violative of due process in that it creates a mandatory presumption of guilt. The language of 30 YSC 405 which Defendant urges is constitutionally infirm is:

No person shall sell, give or otherwise deliver possession of any alcoholic beverage to a person . . . who does not have in his immediate possession a valid drinking permit. Proof that a person did sell, give or otherwise deliver possession of any alcoholic beverages to a person . . . who does not have in his immediate possession a valid drinking permit shall give rise to a conclusive and irrebuttable presumption of violation of this section.

The court construes this presumption language in the context, of a presumption in that legislative acts are presumed to be constitutional, and where fairly possible a construction of a statute will be made that avoids constitutional questions. Truk v. Hartman, 1 FSM Intrm. 174 (Truk 1982)

     The court approaches the statute in two ways. First, the court considers a conventional presumption analysis, which entails looking at the fact or facts the State must prove and the fact or facts to be presumed therefrom. A second and different read of the language leads to the conclusion that the statute does not create a presumption in the usual sense, but rather imposes

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strict liability for the sale of alcohol to a person without a valid drinking permit regardless of knowledge or intent on the part of the person who sells. Either approach leads to the conclusion that the statute, regardless of the harsh effect which it may have in possible applications, does not impermissibly tread upon the due process rights of the Defendant.

II.  The mandatory presumption created by the statute does not violate due process because the facts which the State must prove and the presumed facts are identical.
     30 YSC 405 sets up a tautology. It says that if the State proves "that a person did sell, give or otherwise deliver possession of any alcoholic beverage to a person . . . who does not have in his immediate possession a valid drinking permit," then this fact shall give rise to a mandatory presumption of a violation of the section. However, the proscribed act itself is the "sell[ing], giv[ing] or otherwise deliver[ing] possession of any alcoholic beverage to a person . . who does not have in his immediate possession a valid drinking permit." The statutory language is an echo: if the State proves that a person sells alcohol to a person without a drinking permit, then the seller is conclusively and irrebutably guilty of selling to a person without a drinking permit. Hence, the facts that the State must show and the facts that the finder of fact must presume from the shown facts are the same. It is this identity of facts required to be shown and facts required to be presumed that saves the statute from potential due process infirmity. In other words, the State's task in proving its case is not made easier by the presumption language used in the statute.

     What is facially offensive to due process about a mandatory presumption is that it dictates to the finder of fact the conclusion which must follow from any given basic fact or facts. In a real sense such a presumption puts artificial parameters around the fact finding process. Little wonder then that mandatory presumptions are hedged about with qualifications and limitations, and the United States Supreme Court fins opined as follows:

A mandatory presumption is a fair more troublesome evidentiary device [than is a permissive presumption]. For it may affect not only the strength of the "no reasonable doubt" burden but also the

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placement of that burden; it tells the trier that hey or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts, [numerous citations omitted] In this situation, the Court has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide. [numerous citations omitted] To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption's constitutional validity is logically divorced from those facts and based on the presumption's accuracy in the run of cases. It is for this reason that the Court has held it irrelevant to analyzing a mandatory presumption, but not in analyzing a purely permissive one, that there is ample evidence in the record other than the presumption to support a conviction.

County Court of Ulster City v. Allen, 442 L. Ed. 777, at 792-794 (1979). The language of Ulster County here is less than transparent, but two concerns emerge: the extent to which the basic elemental facts coincide, and the "accuracy of the presumption," although the court does not offer specifics on the second point other than to refer to the "run of cases". In the case at bar, the basic and elemental facts coincide, since they are identical, and the presumption following from the basic facts is therefore, by definition, accurate. Hence, the presumption created by 30 YSC 405 meets the criteria considered in Ulster County.

     Another approach which is a reasonable synthesis that incorporates by implication the logic of Ulster County, and that applies whether or not the presumption is permissive or mandatory, is to determine whether or not the presumption invades the province of the fact finder: the presumption must not undermine the fact finder's responsibility at trial, based on the evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. State v. Williams, 400 So. 2d 575 (La. 1981); State v. Grilz, 666 P.2d 1059, 136 Ariz. 450 (1983). In the instant case, all the court is told is that if the Defendant sold alcohol to a person who does not have a valid drinking permit, then the court has no choice but to find the Defendant guilty. The logic of the statute is circular, but it does not invade the province of the court as the trier of fact, and the mandatory presumption is not violative of due process.

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     A United States Supreme Court case deals with legislation passed by the state of Georgia that incorporated a due process flawed presumption; and that case is offered here by way of contrast to the Yap statute at issue. Manley v. Georgia, 73 L.Ed. 575 (1928), which Defendant cites, provides an example of a presumption that runs afoul of due process because the fact which the State must prove is different from and bears no reasonable connection to the presumed fact. In Manley, the legislature of the state of Georgia enacted a statute that provided in essential part that "[e]very insolvency of a bank shall be deemed fraudulent." 73 L.Ed. at 577. The court said:

The proof which makes a prima facie case point [i.e., the simple fact of insolvency] points to no specific transaction, matter or thing as the cause of the fraudulent insolvency or to any act or omission of the accused tending to show his responsibility . . . . Inference of crime and guilt may not reasonably be drawn from mere inability to pay demand deposits and other debts as they mature. In Georgia banks are permitted to lend up to 85 per cent of their deposits. Unforeseen demands in excess of the reserves required do not tend to show that the crime created by Sec. 28 has been committed. The same may be said as to the other conditions defined as insolvency. The connection between the fact proved and that presumed in not sufficient. Reasoning does not lead from one to the other. [citation omitted] The presumption created by Sec. 28 is unreasonable and arbitrary. [citation omitted]

73 L.Ed. at 578.
     The Yap statute is of a different stripe from that in Manley, and for the foregoing reasons, then, the Statute does not create a mandatory presumption that violates due process.

III.  The mandatory presumption language of the statute works to create strict criminal liability.
     The foregoing discussion in large measure is academic, since the practical effect of the statutory language is to preclude the Defendant from offering any defense once the State has proven 1) a sale or other giving 2) by a defendant 3) to a person without the requisite drinking permit. Hence, 30 YSC 405 creates a strict or absolute liability criminal offense. The issue then becomes whether the statute viewed as such is constitutional. To put a finer

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point on the issue, can the legislature dispense with a mental state element in respect to this offense, and there a defendant from presenting any state-of-mind related defense to the charge whatever, no matter how compelling that defense may be? Without commenting on the wisdom of the exercise of this power, the court concludes that the legislature can dispense with a scienter element as to 30 YSC 405.

     This issue turns on one aspect of the statute. The common law has historically drawn a distinction between malum in se crimes and malum prohibitum offenses. The latter are crimes which under the common law have required an evil mind, such as murder or theft, while the former are crimes which are regulatory in nature, and which are enacted pursuant to a state's police regulatory power with an eye to protect public welfare. An extended discussion of this historical distinction between malum prohibitum and malum in se crimes is found in the United States Supreme Court case Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). It is clear that a legislature has the power to do away with the intent element of an offense in these cases involving the public welfare, and although there appears to be no reported case in the FSM on this point, extra-FSM authority is legion, and a range of jurisdictions provide the following: U. S. v. Hussein 675 F. 2d 114, certiorari denied 103 S. Ct. 154, 459 U.S. 869, 74 L.Ed.2d 129 (C.A Mich. 1982): Conduct which is "malum prohibitum" is a public welfare offense where strict liability is appropriate. U. S. v. Marvin, 687 F.2d 1221, certiorari denied 103 S.Ct. 1786, 460 U.S. 1081; 76 L.Ed. 2d 342 (C.A.Mo. 1982): Congress may make an act criminal without regard to actor's state of mind, subject to the Constitution. State v: Thompson, 674 P.2d 895, 138 Ariz. 341 (App. 1983): While criminal intent is generally required for criminal conduct, it is within the power of the legislature to criminalize certain acts without regard to the actor's intent. People v. Guinn, 196 Cal. Rptr. 696, 149 C.A.3d Supp. 1(Cal. Super. 1983): "Public welfare" or "malum prohibitum" offenses are punishable despite the absence of any criminal intent or criminal negligence. Bollier v. People, 635 P.2d 543 (Colo. 1981): The legislature may define certain acts as being criminal without requiring proof of any culpablemental state. State v. Oxx, 417 So.2d 287.(Fla. App. 1982): The category of crimes proscribing conduct not prohibited at common law, that is, crimes mala prohibita, were considered to be punishable regardless of intent. People v: Brown, 75 Ill. Dec. 216, 457 N.E. 2d 6, 98 Ill 2d 374 (1983): The legislature can

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create offenses not requiring scienter. Simon v Solomon, 431 N.E. 2d 556, 385 Mass. 91 (1982): In framing statutes creating special duties of care for the protection of the public health and safety, legislatures may impose even strict criminal liability. State v. Suter, 346 N. W. 2d 372 (Minn. App. 1984): The legislature may forbid the doing of an act and make its commission criminal without regard to the intention, knowledge, or motive of the doer.

     Alcohol control is an area in which the legislature can create offenses regulatory in nature, and thus omit a scienter requirement. A case that deals with facts similar to the one at bar is Funari v. City of Decatur, 563 So. 2d 54 (Ala. Cr. App. 1990). Funari involves a statute which created absolute liability for sale of an alcohol to a minor. Section 28-3A-25(a)(3) of the Alabama Code made it unlawful "'for any licensee or the board [Alcoholic Beverage Control Board] either directly or by the servants, agent, or employee of the same to sell, deliver, furnish or give away alcoholic beverages to any minor."' 563 So.2d 54 at 55. The Funari court opined:

Upon review of the statute, we find that Sec. 28-3A-25(a)(3) was enacted for the purposes of protecting the public welfare, health, peace, and morals of the people of this state and should be deemed a valid exercise of the state's police power. The portion of the statute which prohibits the selling of alcohol to minors does not contain any language requiring knowledge or intent. The legislature could easily have included the element of knowledge as it did in Sec. 28-3A-25(a)(21). [citation omitted]  In our opinion, the very purpose of the statute clearly indicates a legislative intent to impose strict liability. [citations omitted]  

Ibid. It appears self-evident that the statute in the instant case is part of an alcohol control scheme. As such, the statute constitutes a valid exercise of Yaps regulatory power, and the legislature had the power to dispense with any intent or knowledge element of the offense.

     Although the legislature has the power to enact the statute at issue, and although the statute as enacted is constitutional, the court observes that the statute at issue has the potential to be harsh in its application. In Funari, the statute involved the sale of alcohol to a minor. In such a case, the seller is going to be in the best place to make at least a guess at the age of the buyer, and thus make a reasonably intelligent decision whether to sell or not. In the case at bar, though, the seller is presented with a piece of paper containing a

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physical description. If the permit tenderer is offering the permit of a third party with the salve description  the court takes judicial notice of the fact that a drinking permit as now formatted does not include a picture of the permittee the salesperson nevertheless faces the real possibility of a stiff sanction if he or she in good faith accepts the permit. This is conduct of a different type from that where a salesperson fails to make any effort to ask for a permit. In that case, the salesperson has failed to act where the law requires him to act. (See State v. Oxx, 417 So.2d 287 (Fla. App. 1982) for the proposition that many mala prohibita crimes result from inaction where the law imposes a duty to acts) Yet, 30 YSC 405 treats both sellers in the same way. The court also observes that the person behind the counter in one of Yap's small stores, who in all likelihood is not highly paid, may be under unspoken pressure from his or her boss to sell alcohol, rather than to refuse to sell on mere suspicion of an invalid permit, lose a sale and possibly a customer, and incur his or her employer's ire in the bargain. This creates a Hobson's choice for the person behind the counter, on whom the statute can visit its wrath even in the face of the salesperson's best on the spot efforts to ascertain the legitimacy of the, drinking permit presented.
     Although a court can in its discretion review the facts of any given case at the time of sentencing to mitigate an unduly harsh effect of a statute, it is not the appropriate role of a court to set aside legislation because a statute may have, in some cases, a harsh application. See Shevlin-Carpenter Co. v. Minnesota, 54 .L.Ed. 930 (1910) at 936: "[L]egislation may, in particular instances be harsh, but we can only say again what we have so often said, that this court cannot set aside legislation because it is harsh." Sheylin-Carpenter is cited United States v. Engler, 806 F.2d 425 (3rd Cir. 1986), which discusses the due process implications of a lack of scienter in criminal statutes. Although the court can posit a harsh application in the instant case, that is not a sufficient basis in and of itself to support the conclusion that the statute violates due process.

IV.  Conclusion
     For the reasons set forth herein, 30 YSC 405 does not run afoul of either the FSM or Yap State constitutions. It does not create an impermissible mandatory presumption that invades the province of the fact finder. The absolute liability that it imposes for sale or other giving of alcohol to a person

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who does not posses a valid drinking permit is a valid, if potentially harsh, exercise of the Yap legislature's regulatory power.

Based on the following,

IT IS HEREBY ORDERED denying the Defendant's Motion to Dismiss.

Dated this 11th day of January, 1996.

Constantine Yinug
Chief Justice

Received and Filed this 11th day of January, 1996.

Clerk of Court, Yap
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