In State v. Robert Witham, 2016 VT 51 (May 6, 2016), the Vermont Supreme Court affirmed Witham’s second conviction for home improvement fraud stemming from his failure to notify the Attorney General and file a surety before performing home improvement activities, an obligation created by his first conviction for home improvement fraud. In affirming the conviction, the Court held that the notice and surety requirements create a strict liability offense.
Issue: Witham was convicted of home improvement fraud in 2005, which placed him on the home improvement fraud registry and required him to notify the Attorney General and file a surety bond or letter of credit in the event that he wanted to engage in home improvement work again. In 2014, Witham performed home improvement work without notifying the Attorney General or filing a surety bond. Witham argued that he did not know of the obligations, and that the home improvement fraud statute has a scienter element.
Holding: The Court held that, based on the State v. Roy factors, the home improvement fraud statute does not contain a scienter element. The factors together weigh in favor of strict liability, and a scienter element should not be read into the statute. (The Roy factors are as follows: the severity of the punishment, the potential harm to the public, knowledge of the relevant information, difficulty of prosecution if proof of intent is required, and the number of prosecutions expected.) The Court found that the first, second, and fourth factors weigh heavily in favor of strict liability, and that the lack of a common law presumption and the statutory language support a finding of strict liability rather than scienter.
Concurrence: Robinson, J. concurred in affirming Witham’s conviction, but argued that the majority’s use of the Roy framework was the incorrect path to affirming the conviction. Instead, Justice Robinson would use the ignorance of the law defense as the framework to determine that Witham’s conviction should be affirmed, given that he argued that he had no knowledge of the existence of the law.