2014-0686, State of New Hampshire v. The Mandatory Poster Agency, Inc.

is a Michigan - based company that “assists corporations in complying with The following facts are taken from the trial court’s order. The defend ant

state of “knowingly,” and not “purposely.” W e affirm. were defective because they alleged that the defendant acte d with the mental Service. See RSA 358 - A:6, I (2009). T he trial court ruled that the indictments defendant, The Mandatory Poster Agency, Inc. d/b/a Corporate Records violations of the New Hampshire Consumer Protection Act (CPA) by the (McNamara, J.) dismiss ing 27 indictments alleging felony - level criminal BASSETT, J. The State appeals an order of the Superior Court

and orally), for the defendant. Bernstein Shur, P.A., of Manchester (Edward J. Sackman on the brief

and orally), for the State. Joseph A. Foster, attorney general (Jesse O’ Neill, attorney, on the brief

No. 2014 - 0 686 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

its plain and ordinary meaning. Id. Further, we interpret legislative intent language of the statute, and, if possible, construe that language according to in the words of the statute considered as a whole. Id. We first look to the interpret ation, we are the final arbiter s of the legislature’s intent as expressed de n ovo. State v. Gibson, 160 N.H. 445, 448 ( p. 2 2010). In matters of statutory Because this issue requires the interpretation of the CPA, our review is

sanctions for CPA violations, “purposely” is the necessary mental state. in light of the policy considerations underlying the imposition of criminal that “purposely” is the correct mental state. Finall y, the defendant argues that, that the CPA is rooted in common law fraud, supports the trial court’s ruling defendant counters that the statutory scheme taken as a whole, and the fact requirements in consumer prote ction statutes in other jurisdictions. The observes that a knowing mental state is in keeping with the mens rea applicability of the CPA, as well as the legislative intent. The State also “knowingly” is more consistent with the title, policy objectives, and broad purposely violated the CPA. The State argues that a mental state of that, to secure criminal conviction, the State had to prove that a defendant On appeal, the State argues that the trial court erred when it concluded

followed. court agreed with the defendant and dismissed the indictments. This appeal objected, arguing that “knowingly” i s the applicable me n tal state. The trial charges fail to allege the requisite mental state of “purposely.” Th e State The defendant moved to dismiss the indictments, arg uing that the

to $ p. 2 2,700,000.” See RSA 651:2, IV(b) (2007). As the trial court noted, if convicted, the defendant faces “potential fines of up March 2013, the defendant “knowingly” violated various provisions of the CPA. RSA 358 - A:2, II (2009). All indictments al lege that, between February and assumption that th[e] solicitation was sent by a governmental agency.” See Concord address is “designed . . . to deceive the recipient into the false in 2013. O ne set of indictments alleges that the defendant’s use of the stemming from the defendant’s allegedly deceptive u se of the Concord address of the CPA. The indictments encompass three sets of nine charges, all Subsequently, a grand jury indicted the defendant on 27 felony violations

$1 p. 2 2,625. result of these direct mailings, it made sales in New Hampshire to tal ing orders from New Hampshire customers.” According to the defendant, as a address is “a private mailbox used as a clearinghouse to receive and bundle Hampshire, 0 p. 3 3301 - 4865,” mailed so licitations to potential customers. This listing its address as “75 South Main Street, Unit 7, #502, Concord, New annual corporate consent documents” by way of direct mail. The defendant, regulations associated with the conduct of corporate business by supplying 3

violations of the CPA require a defendant to act “with intent,” see RSA p. 3 358 - A:2, The State concedes that the plain language of two of the alleged

legislative intent.” Id. at p. 3 339. determination, “we first look to the plain langua ge of the statute to determine purpose appears in the language of the statute.” Id. In making this will then be applied to all material elements of an offense unless a contrary 336, 338 (2003) (q uotation omitted). “The appropriate culpable mental state for punishing the conduct in question.” State v. Rollins - Ercolino, 149 N.H. appropriate in light of the nature of the offense and the policy considerations read [the statute] as requiring proof of a culpable mental state which is “When a criminal statute does not provide for a specific mental sta te, we

nature or that such circumstances exist.” RSA 626:2, II(b) (2007). material element of an offense when he is aware that his conduct is of such person acts knowingly with respect to conduct or to a circumstance that is a conduct that comprises the e lement.” RSA 626:2, II(a) (2007). In contrast, “[a] offense when his conscious object is to cause the result or engage in the (2007). “A person acts purposely with respect to a material element of an require, with respect to each material element of t he offense.” RSA 626:2, I only if he acts purposely, knowingly, recklessly or negligently, as the law may In New Hampshire, “[a] person is guilty of . . . a felony, or a misdemeanor

A:2, :6, I. o rder to obtain a conviction for a criminal violation of the CPA. See RSA p. 3 358 statute, however, does not specify the mental state that the State must prove in natural person, or guilty of a felony if any other person.” RSA 358 - A:6, I. The convicted of violating RSA 358 - A:2. . . shall be guilty of a misdemeanor if a :10 (2009), t he CPA provides for criminal penalties, stating that “[a]ny person In addition to both public and private civil remedies, see RSA 358 - A:4,

breach of contract claim, for example, is not a violation o f the CPA.” Id. within its scope.” State v. Sideris, 157 N.H. 258, 262 (2008). “A n ordinary CPA is broadly worded, not all conduct in the course of trade or commerce falls or deceptive. See RSA p. 3 3 58 - A:2, I - XIV. “Although the general provision of the RSA 358 - A:2 also provides a non - exclusive list of conduct deemed to be unfair 2007) (holding that RSA 358 - A:2, XIII is preempted, in part, by federal law). (amended 2014). B ut see SPGGC, LLC v. Ayotte, 488 F.3d 525, 536 (1st Cir. conduct of any trade or commerce within this state.” RSA 358 - A:2 (2009) unfair metho d of competition or any unfair or deceptive act or practice in the The CPA states that “[i]t shall be unlawful for any person to use any

a statute in the context of the overall statutory scheme and not in isolation. Id. have said or add language it did not see fit to include. Id. Finally, we interpret from the statute as written and will not consider what the legislature mig ht p. 4 4

little to illuminate the legislature ’s intent with regard to the mental state willingly” from the proposed legislation that resulted in RSA 358 - A:6, III does inaccurate statements). Thus, t he removal of the phr ase “knowingly and different conduct than does RSA 358 - A:6, III (filing false, misleading, or R SA 358 - A:2 (unfair and deceptive acts in trade or commerce) punishes

contravene legislative i ntent. We disagree. rigorous mental state of “purposely” for violations of RSA 358 - A:2 would law.” Id. The State argues that, in light of this change, requiring the more into the ‘knowingly’ matter which would be a very difficult matter to prove at and Administration Committee recommended the removal to avoid “get [ting] remarks of Senator Alf Jacobson, who stated that the Executive Departments “knowingly and willingl y.” N.H.S. Jour. 223 (1970). The State cites the but, prior to its enactment in 1970, it was amended to remove the phras e who knowingly and willingly subverts the intent and purposes of this chapter,” that this section of the proposed legislation originally stated that “[a]ny person prosecution under this chapter shall be guilty of a violation.” The St ate notes inaccurate statements with the attorney general for the purpose s of effecting intent and purposes of this chapter by filing false, misleading, or substantially RSA 35 8 - A:6, III (2009), which states that “[a]ny person who subverts the supports a knowing mental state. T he State cites another section of the CPA, Turning first to the legislative history of the CPA, t he State argues that it

statutory prov isions.” Id. (citations omitted). the context of its overall statutory scheme and the intent behind similar will also consider other indicia such as the title of the statute, the statute in to determine the legislature’s intent.” Rollins - Ercolino, 1 p. 4 49 N.H. at 339. “[W] e “Thus, we begin by looking at the legislative history of this an d similar statut es However, as b oth parties acknowledge, the CPA did not exist at common law. origins of the crime . . . .” State v. Goodwin, 140 N.H. 672, 674 (1996). offense is silent with respect to the mens rea, we will look to the common law N.H. at 339 (citation and quotation omitted). “[W]hen a statute defining an considerations for punishing the conduct in question.” Rollins - Ercolino, 149 we must look further into the nature of the offense and the policy legislature’s intent and is subject to more than one reasonable interpretation, “W h en, as here, the statutory language gives us no indication of the

proof of “intent” only for certain civil violations. the “intent” requirement to all criminal violations of the CPA, while requiring include. We observe that an other reasonable interpretation would be to apply “knowingly,” because we should not add words the legislature did not see fit to defendant act “with intent,” the mental state for a criminal v iolation should be T he State contends that, in those sections of the CPA that do not require that a “purposely.” See State v. McGill, 167 N.H. __, __, 112 A.3d p. 5 57 p. 4 4, 578 (2015). IX, X, and that “with intent” is sy nonymous with the mental state of 5

construe the statute so as to lead to so harsh a result.” Franklin Lodge of Elks before us, and absent a clear expression of such an intent, “[w]e decline to the lesser mental state of “knowingly.” But considering the statutory scheme that provided for such severe and multiple penalties for an act committed with in a private civil action. T he legislature certainly could have written a statute vio lation of the CPA, s e e RSA 6 p. 5 51:2, IV(b), would face double or treble damages prosecuted and subject to the criminal sanction of up to $100,000 for each (quotation omitted)). Further, a corporate defendant that was successfully person in a later civil action against the defendant in the crimina l prosecution” prosecuting authority in an earlier prosecution is preclusive in favor of a third 75, 81 (2006) (observing that “as a general rule . . . a judgment in favor of the damages in a subsequent private civil action. See Stewart v. Bader, 1 54 N.H. expose the defendant to an award of at least twice the amount of actual Additionally, we note that crimin al conviction under the CPA would

times, such amount.” Id. knowing,” the court “shall award as much as 3 times, but not less than 2 costs. Id. Further, i f a plaintiff demonstrates that the violat ion was “willful or $1,000, whichever is greater” and an award of reasonable attorney’s fees and plaintiff is entitled to compensation “in the amount of actual damages or right of acti on for damages and equitable relief. RSA 3 p. 5 58 - A:10, I. A prevailing seek criminal penal ties under RSA 358 - A:6. Third, t he CPA creates a private this chapter.” RSA 358 - A:4, III(b). Second, as previously noted, the State may action, and a court may impose “pe nalties up to $10,000 for each violation of sanctions for its violation. First, t he State may bring a civil enfor cement 149 N.H. at 339. Viewed as a whole, the CPA provides for three types of scheme and the intent behind similar statutory provisions.” Rollins - Ercolino, We next examine “the statute in the context of its overall statutory

CPA. int ended a knowing mental state to apply to criminal prosecutions under the whole is to protect consumers, it does not l ogically follow that the legislature Hampshire.” Although there is no doubt that the purpose of the statute as a to be a broadly applicable tool to effectively protect consumers in New because they show that “the legislature intended the Consumer Protection Act as demonstrated by the legislative history, support a knowing mental state The State also asserts that the policy considerations underlying the CPA,

effecting [a] prosecution.” statement submitted to the attorney general must be done “for the purpose[] of mental state and that mental state is “purposely” — the f alse or misleading different section of the statute. Moreover, RSA 3 p. 5 58 - A: p. 6 6, III does incorporate a and willingly” from RSA 358 - A:6, III, intended us to read “knowingly” into a the State’s argument that the legisl ature, by removing the phrase “knowingly need ed to prove a criminal violation of RSA 358 - A: 2. We are not persuaded by 6

DALIANIS, C.J.