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State v. The Mandatory Poster Agency, Inc.

Supreme Court of New Hampshire

October 14, 2015

THE STATE OF NEW HAMPSHIRE
v.
THE MANDATORY POSTER AGENCY, INC.

Argued: April 22, 2015

Merrimack

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

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

BASSETT, J.

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

The following facts are taken from the trial court's order. The defendant is a Michigan-based company that "assists corporations in complying with regulations associated with the conduct of corporate business by supplying annual corporate consent documents" by way of direct mail. The defendant, listing its address as "75 South Main Street, Unit 7, #502, Concord, New Hampshire, 03301-4865, " mailed solicitations to potential customers. This address is "a private mailbox used as a clearinghouse to receive and bundle orders from New Hampshire customers." According to the defendant, as a result of these direct mailings, it made sales in New Hampshire totaling $12, 625.

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

The defendant moved to dismiss the indictments, arguing that the charges fail to allege the requisite mental state of "purposely." The State objected, arguing that "knowingly" is the applicable mental state. The trial court agreed with the defendant and dismissed the indictments. This appeal followed.

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

Because this issue requires the interpretation of the CPA, our review is de novo. State v. Gibson, 160 N.H. 445, 448 (2010). In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Id. We first look to the language of the statute, and, if possible, construe that language according to its plain and ordinary meaning. Id. Further, we interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language it did not see fit to include. Id. Finally, we interpret a statute in the context of the overall statutory scheme and not in isolation. Id.

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

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

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


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