State of Minnesota v. Nelson: The Minnesota Supreme Court Gets It Right

Reviled by news outlets like the Minneapolis Star-Tribune for “hobbling” prosecution of deadbeat dads, the only thing that actually is disturbing about the Minnesota Supreme Court’s 4-3 decision in State of Minnesota v. Nelson on Wednesday is that there were any dissenting opinions at all. Contrary to the claims of the dissenters and journalists, the ruling does not make it impossible to prosecute child support deadbeats. And although the decision is being touted as a victory for men’s rights, it really isn’t that, either. True, it signals a willingness on the part of the judiciary to abide by the rule of law, but that is a victory for everyone, not just men.

The facts

In their divorce, Larry Nelson was ordered to pay child support to his ex-wife for their two children. He did this for a number of years, but then stopped. According to the complaint, he did not pay child support from April, 2007 through April 2008. On this basis, the State commenced a criminal prosecution against him for violation of Minn. Stat. Sec. 609.375, which provides: “Whoever is legally obligated to provide care and support to a spouse or child, whether or not the child’s custody has been granted to another, and knowingly omits and fails to do so is guilty of a misdemeanor.” It increases the severity of the crime to a felony if the violation continues for more than six months.

Nelson sought to dismiss the complaint because it failed to allege any facts to support the claim that he had failed to care for the children. The statute penalizes individuals who fail to provide “care and support” to their children. The district judge disagreed, effectively re-writing the statute as if it penalized anyone who either failed to provide care, or failed to provide support. Emboldened by the judge’s misinterpretation of the clear meaning of the word “and,” the State then moved for an order prohibiting Nelson from providing any evidence, or making any argument, that he was taking care of the children during the relevant period. The district judge granted the motion, and a felony conviction promptly ensued.

The Court of Appeals affirms

Mr. Nelson appealed the conviction, including the district judge’s order prohibiting him from introducing evidence to show that he had been taking care of the children during the period for which the State sought to penalize him for failing to pay money to the children’s mother. The Court of Appeals affirmed. To reach this result, it simply excised the word “care” from the statute. The phrase, “care and support,” the Court concluded, really only means “support.”

The Supreme Court rules that and means and, and care means care

Mr. Nelson appealed to the Minnesota Supreme Court. In a 4-3 decision, the Court reversed both the trial judge and the Minnesota Court of Appeals, holding that “care and support” means neither “care or support” nor “only support.” Instead, the Court determined that “care and support” means care and support. Because “and” is a conjunctive term, not a disjunctive one, the State must prove both elements of the crime – i.e., (1) failure to support a child; and (2) failure to care for a child.

The dissenters

The three dissenting justices advanced several different arguments. Justice Dietzen basically argued that “support” means financial child support, and that the word “care” is merely meaningless surplusage. To the legislature, he contended, “care” is essentially a synonym for financial support. There are a number of flaws with this argument, all of which the majority opinion properly addressed. It also bears pointing out, though, that if the dissenters’ argument were accepted, then custodial parents would be at risk of prosecution for criminal non-support. If “care” means only financial support, then the direct care provided by a custodial parent in lieu of paying child support to the other parent would count for nothing. That being the case, all custodial parents would be guilty of criminal non-support. Custodial parents should be relieved that the majority did not accept this argument.

Justice Lillehaug’s dissent cited policy reasons in support of judicially excising the requirement of proof of both failure to support and failure to care from the statute:

By requiring proof … of knowing failure to provide non-monetary ‘care,’ the majority’s decision today handcuffs the State from using section 609.375 to prosecute knowing non-support. Is is possible that, as a result of the majority’s holding and in the absence of swift legislative correction, Minnesota could become the only state without viable criminal sanctions for failure to pay child support.

This is not true. Minn. Stat. Sec. 588.20, subd. 2(8) (2014) specifically makes “willful failure to pay court-ordered child support when the obligor has the ability to pay” a crime in Minnesota. And 8 U.S.C. §228 (2014) makes willful failure to pay child support a crime in interstate cases. Nothing in the majority’s decision repeals either of these laws.

A lesson for legislators

So why did this case even make it to the Supreme Court? After all, it is a well-established rule of construction that every word in a statute has a meaning. In the case of a criminal statute, this rule has Due Process “notice” dimensions. It is likely that if any issue other than child support enforcement had been at stake in this case, it would have been correctly decided from the beginning. It is also likely that if legislators had given a little more thought to the awkwardness of the wording they chose, they probably would have known better than to have drafted it the way they did.

The problem is that the statute in question describes the elements of the crime in a form similar to the negation of a conjunction: “Whoever is legally obligated to provide care and support … and knowingly omits and fails to do so is guilty….” The gist of this crime, then, is to fail to provide care and support. When a conjunctive phrase is negated, two interpretations are possible: (1) that either one or the other element of the conjunctive phrase is absent; or (2) that neither element is present. DeMorgan’s Theorem says that the negative of a conjunctive phrase (not (A and B)) is equivalent to a disjunctive of the negated terms ((not A) or (not B)). On the other hand, in common usage, and in prior court decisions, the negative of a conjunctive phrase (not (A and B)) is held to be the equivalent of a conjunction of the negated terms, i.e., ((not A) and (not B)). This interpretation is the more reasonable one in this instance, not only on the grounds of stare decisis and common usage, but also because a “failure to provide” a thing is not strictly the logical equivalent of a “negation” of the thing itself.

Ultimately, what this case demonstrates is that legislators need to take greater care to avoid even potentially ambiguous sentence constructions when drafting penal legislation. Otherwise, the real-life consequence may very well be the felony conviction and imprisonment of parents for providing only direct loving care to their children.

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