Petition for Writ of Certiorari — Allen v. California

Supreme Court,

rr court, U8

93195 2 may 1 2 199

NWOFIRE-OF THE CLERK

IN THE ;

SUPREME COURT OF THE UNITED STATE

October Term, 1994

RALPH G. ALLEN

Petitioner,

Vv.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE CALIFORNIA SUPREME COURT;

or in the alternative,

TO THE CALIFORNIA COURT OF APPEALS,

SECOND APPELLATE DISTRICT, DIVISION THREE

PETITION FOR A WRIT OF CERTIORARI

AND APPENDIX

RALPH G. ALLEN

13325 Sproule Avenue

Sylmar, California 91342

(818) 362-0878

Petitioner, in his proper person.

l

QUESTIONS PRESENTED FOR REVIEW

1. Do the "due process" and "equal protection"

clauses of the Fourteenth Amendment require criminal

scienter, i.e., "willfulness" be read into California Revenue

and Taxation Code Section 19401(a)?

2. California Revenue and Taxation Code, Section

19401(a) contains both a criminal and civil offense,

identical in nature. Is Section 19401(a) unconstitutional

because it fails to attach a higher degree of delinquency,

guilt or culpability to the criminal offense contained

therein, so as to distinguish the civil offense from the

criminal offense?

3. Does the lack or inadequacy of regulations

promulgated by the Franchise Tax Board deny Allen due

process and fair notice under the law?

1. The style of this case as shown on the front cover of this

Petition contains the name of all parties to this cause.

—————————————————

«ts

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW i

TABLE OF CONTENTS il

TABLE OF AUTHORITIES iv

OPINIONS BELOW 1

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THIS CASE 2

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT ’

STANDARD OF REVIEW 7

LEGISLATIVE HISTORY OF

SECTION 19401 7

STATUTORY CONSTRUCTION OF SECTION

19401, POST 1984 AMENDMENT 9

WILLFULNESS MUST BE READ INTO SECTION

19401(a), AS IT IS A CRIME UNKNOWN TO THE

COMMON LAW, AND HENCE NOT A STRICT

LIABILITY STATUTE 10

THE GENERAL RULE IS THAT A CRIME

HAS TWO ELEMENTS, AN ACT AND

MENS REA (INTENT) 11

FAILING TO FILE TAX RETURNS

IS NOT A REGULATORY OR PUBLIC

WELFARE OFFENSE FALLING WITHIN THE

POLICE POWER OF THE STATE 13

——s mm

Mh.

THE CALIFORNIA APPELLATE COURT

LEFT OPEN THE QUESTION WHETHER

SECTION 19401(a) WAS

UNCONSTITUTIONAL BECAUSE IT

FAILS TO ATTACH A HIGHER

DEGREE OF DELINQUENCY, GUILT

OR CULPABILITY TO THE CRIMINAL

OFFENSE CONTAINED THEREIN,

SO AS TO DISTINGUISH THE

CIVIL OFFENSE FROM THE

CRIMINAL OFFENSE 14

ALLEN WAS NOT GIVEN NOTICE

BY STATUTE OR REGULATION AS

TO WHAT RETURN HE WAS |

REQUIRED TO FILE, OR WHAT

INFORMATION HE WAS REQUIRED

TO SUPPLY 16

CONCLUSION 18

ens

- iv-

TABLE OF AUTHORITIES

CASE CITATIONS

Bell v. United States,

349 U.S. 81, 75 S.Ct. 620 (1955) Y

Bellis v. United States,

417 U.S. 85 (1974) 13

Boyce Motor Lines Inc. v. U.S.,

96 L.Ed. 374, 97 L.Ed. 203 (1951) 4

Brooks v. Oakland

160 C. 423, 117 P.433 (1911) 7

California Bankers Assn. v. Shultz

416 U.S. 21, 94 S.Ct. 1494 (1974) 5,17

Cheek v. United States,

hi 5 aoe S.Ct. 604 (1991) 4

Colautti v. Franklin,

439 U.S. 379, 99 S.Ct. 675, 58, L.Ed.2d. 596 (1979) 5

Coleman v. Thompson

$01 U.S. __, 111 S.Ct. 2546, 115 L.Ed. 2d 640 7

Connally v. General Const. Co.,

269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 4

Connecticut Nat’l Bank v. Germain,

_US.__, 112S.Ct. 1146, 117 L.Ed. 2d 391 (1992) 10

Estate of Cowart v. Nicklos Drilling Co.,

US , 112 S.Ct. 2589, 120 L.Ed. 2d 379 (1992) 9

Estate of Rath,

10 C.2d 399, 75 P.2d 509 9

Giaccio v. Pennsylvania,

382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d. 447 (1965) 5

-V-

Grayned v. City of Rockford,

408 U.S. 104, 92 S.Ct. 2294, 33 L. Ed. 2d 222 (1972) 4,15

Hentzner v. State,

613 P.2d 821 (Alaska 1980) 11

Hoffman Estates v. Flipside, Hoffman Estates,

455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d. 362 (1982) 4

Holdridge v. United States

282 F.2d 302 (8th Cir. 1960) 11

James v. U.S..

366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d. 246 (1961) ~)

Kolender v. Lawson,

461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) 5

Lambert v. California,

355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d. 228 5

Liparota v. United States,

471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) 4,13

Los Angeles v. Jones

13 C.2d 554, 90 P.2d 802 9

Michigan v. Long

463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed. 2d 1201 (1983) 7

Momnisse.te v. United States,

342 U.S. 246, 72 S.Ct. 240, 96 L-Ed. 288 (1952) 4,10,11,12

New York Central and Hudson River

Raiiroad Co. v. United States,

212 U.S. 481 (1909) 13

Papachristou v. City of Jacksonville,

405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d. 110 (1972) 5

People v. Allen,

20 Cal.App. 846 (Dist. 2, 1993) 1,5,6,10

- Vi -

People v. Jones,

149 Cal. App.3d Supp. 41, 197 Cal. Rptr. 273 (1983)

People v. Kuhn,

216 C.A. 2d 956, 31 C.R. 253, (1963)

People v. Singer

115 C.A.3d. Supp. 11, 171 C.R. 587 (1980)

Shevlin-Carpenter Co. v. Minnesota,

218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 (1910)

Spies v. United States,

317 U.S. 492, 87 L. Ed. 298 (1943)

State v. Campbell,

536 P. 2d 105 (Alaska 1975)

State v. Collova,

255 N.W. 2d 581 (1977)

State v. Dried Milk Products Co-op.,

16 Wis. 2d 357, 114 N.W. 2d 412 (1962)

U.S. v. Cardiff,

344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952)

U.S. v. Hicks,

947 F.2d. 1356 (9th. Cir. 1991)

United States v. A. P. Trucking Company,

358 U.S. 121 (1958)

United States v. Balint

258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922)

United States v. Dotterwich,

320 U. S. 277 (1943)

United States v. Freed

401 U.S. 601, 28 L.Ed. 2d 356 (1971)

6

11,13

- Vii -

United States v. International

Minerals & Chemical Corp.,

402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed. 2d 178 (1971) 13

United States v. Park,

421 U.S. 658 (1975) 13

United States v. Reynolds

235 U.S. 133, 35 S.Ct. 86, 59 L.Ed. 162 (1914) 7

United States v. U.S. Gypsum Company,

438 U.S. 422 (1978) 4,11

United States v. White,

322 U.S. 694 (1944) 13

United States v. Wilson

__US.____, 112 S.Ct. 1351, 117 LEd. 2d 593 (1992) 9

United States v. Wul

758 F.2d 1121 (1985) 10

Viereck v. United States,

318 U.S. 236, 63 S.Ct. 561 (1943) 16

Whitney v. California,

274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) 5,15

Wright v. Georgia,

373 US. 284, 83 S.Ct. 1240, 10, L.Ed.2d. 349 (1963) 5

STATUTES

28 U.S. C., Section 1257

California Stats. 1935 ch. 329 pp. 1090

California Stats 1943 ch. 659

California Stats 1984 ch. 1490

"Ss wr So

California Stats 1993 ch. 31, Sec. 24 (SB 3)

- Vill -

California Revenue and Taxation Code:

Division 2, Part 10, Chapter 17 16,17

Section 18401 17

Section 18431 17

Section 19253 16

Section 19401 in passim

Section 19401(a) in passim

Section 19401(b) 8

Section 19401(c) 8,9

Section 19701 9

MISCELLANEOUS

California Constitution:

Article XIII 14

Article XIII, Sec. 26 (a) 7

Hall, General Principles of Criminal Law,

c. X (2d Ed.1960) 11

Hart, The Aims of the Criminal Law,

23 Law & Contemp. Prob. 401 (1958) 11

LaFave & Scott Criminal Law,

218-223 (1927) 11

Logic & Potential of a Developing Concept,

1970 Wis. L.Rev. 1201 11

Mueller, On Common Law Mens Rea,

42 Minn. L. Rev. 1043 (1955) 11

icant

Sayre, Public Welfare Offenses,

33 Colum. L. Rev. 55 (1933)

Supreme Court Rule 13.1

United States Constitution:

Article V

Article XIV

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Ralph G. Allen, (herein "Allen"), hereby petitions

this Court for a Writ of Certiorari to the California

Supreme Court, or in the alternative to the California

Court of Appeals, Second Appellate District, Division

Three.

OPINIONS BELOW

The Appellate Division of the California Superior

Court affirming Allen’s conviction in the Municipal Court,

in and for the Poe of Los Angeles was entered on

February 23, 1993, was not | Sepomeci see People v. Allen

Super. Ct. No. BR 30748. The unpublished opinion of the

Superior Court appears in the Appendix at - 1 -.

Petition for reconsideration or certification to the

Second District Court of Appeals was timely filed and on

March 18, 1993 the Superior Court certified the appeal to

the Second District Court of Appeals.

On March 31, 1993 the District Court of Appeals

accepted certification and ordered transfer of the case for

further hearing and decision.

The District Court of Appeals’ decision affirming

Allen’s conviction in the California Municipal Court, was

entered on November 29, 1993, and was a published

decision; See, People v. Allen, 20 Cal.App. 846 (Dist. 2,

1993). That published opinion of the District Court of

Appeals appears in the Appendix at - 7 -. Petition for

rehearing was timely filed, but was denied December 17,

1993.

Request for review to the California Supreme

Court was timely filed, but was denied by the Supreme

Court on March 2, 1994. The denial by the California

Supreme Court Appears in the Appendix at - 21 -.

ahs

JURISDICTION

The opinion and judgment sought to be reviewed by

this petition was denied review by the California Supreme

Court on March 2, 1994. Accordingly, this petition 1s

timely pursuant to Rule 13.1. of the Rules of the Supreme

Court. The jurisdiction of this Court regarding this

petition is established pursuant to Title 28, U.S. Code,

Section 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED IN THIS CASE

UNITED STATES CONSTITUTION

Article V of the Bill of Rights, states in pertinent

part:

No person shall . . . be deprived of life, liberty, or property

without due process of law;

Article XIV of the Bill of Rights, states in pertinent

part:

No State shall .. . deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

STATUTES

California Revenue and Taxation Code Section

19401:

"Failure to file return or making false return; Penalty;

Misdemeanor

Any person who does any of the following is liable for a

penalty of not more than five thousand dollars ($5,000):

(a) With or without intent to evade any requirement of this

part or any lawful requirement of the Franchise Tax Board

under this part, fails to file any return or to supply any

mo

information required under this part, or who, with o1

without such intent, makes, renders, signs or verifies any

false or fraudulent return or statement, or supplies any

false or fraudulent information.

(b) Aids, abets, advises, encourages, or counsels any

individual to evade the tax imposed by this part by not

filing any return or supplying any information required

under this part, or, by making, rendering, signing, or

verifying any false or fraudulent return or statement, or by

supplying false information.

(c) Under this part, is required to pay any estimated tax or

tax, who willfully fails to pay that estimated tax or tax, at

the time or times required by law or regulations.

The penalty shall be recovered in the name of the people

in any court of competent jurisdiction. Counsel for the

Franchise Tax Board may, upon request of the district

attorney or other prosecuting attorney, assist the

prosecuting attorney in presenting the law or facts to

recover the penalty at the trial of a criminal proceeding for

violation of this section.

The person is also guilty of a misdemeanor and shall upon

conviction be fined not to exceed five thousand dollars

($5,000) or be imprisoned not to exceed one year, or both,

at the discretion of the court, together with costs of

investigation and prosecution."

STATEMENT OF THE CASE

Allen was charged by complaint filed on November

15, 1990 charging three (3) counts of failing to file a

California tax return pursuant to Revenue and Taxation

Code Section 19401(a) * for the years 1985, 1986 and 1987.

On July 25, 1992 Allen received a jury trial. Prior

to trial Allen moved the Court to instruct the jury that

1. All references to statutes will be to the California Revenue and

Taxation Code unless otherwise stated.

a

"willfulness" was an element of Section 19401(a), and

requested a jury instruction to that effect, instead of

interpreting Section 19401(a) as a strict liability statute,

requiring no general or specific intent. The Court refused

to issue the requested jury instruction, and instructed the

jury that intent was not an element of the offense. The

Defendant timely objected to the Trial Court’s instruction.

The jury found Allen guilty on all counts on July 26,

1991. On August 9, 1991 Allen rejected probation and was

sentenced to 210 days on each count to be served

consecutively in the County Jail.

In the appellate courts, Allen argued, inter alia, that

his conviction was constitutionally infirm for the following

reasons:

First, Allen argued that Section 19401(a) was

wrongly interpreted as a strict liability statute which

relieved the prosecution from the burden of proving

criminal intent, i.e., "willfulness," which denied Allen due

process and equal protection of the law; Cheek v. United

States, U.S. ,111S.Ct. 604, (1991); Liparota v. United

States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985);

United States v. U.S. Gypsum Company, 438 U.S. 422

(1978); Morissette v. United States, 342 U.S. 246, 72 S.Ct.

240, 96 L.Ed. 288 (1952). :

The existence of a mens rea is the rule, not the

exception, in criminal statutes. Any criminal statute

omitting intent is subject to and within the scope of

constitutional review, because intent serves to relieve the

statute of the objection that it punishes without warning.

See, Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct.

126, 70 L.Ed. 322; U.S. v. Cardiff, 344 U.S. 174, 73 S.Ct.

189, 97 L.Ed. 200, (1952); Hoffman Estates v. Flipside,

Hoffman Estates, 455 U.S. 489, 494-495, 498, 102 S.Ct.

1186, 71 L.Ed.2d. 362, (1982), [civil standard]; Boyce Motor

Lines Inc. v. U.S., 96 L.Ed. 374, 97 L.Ed. 203, (1951),

{regulatory standard]; Morissette v. U.S., 342 U.S. 246, 72

S.Ct. 240, 96 L.Ed. 288 (1952).

Second, Allen argued that Section 19401(a) is

unconstitutional as it fails to set a higher standard of guilt

or culpability to distinguish the civil offense from the

criminal offense, which would give notice to the public

what conduct will trigger application and enforcement of

the criminal offense, rather than the civil offense. Grayned

ae

v. City of Rockford, 408 U.S. 104, 108 109, 92 S.Ct. 2294, 33

L. Ed. 2d 222, (1972); Spies v. United States, 317 U.S. 492,

87 L. Ed. 298, (1943); Whitney v. California, 274 U.S. 357,

47 S.Ct. 641, 71 L.Ed. 1095, (1927). e Section’s failure

to so distinguish the criminal offense from the civil offense

allows unconstitutional arbitrary and discriminatory

applications of Section 19401(a). Kolender v. Lawson, 461

S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903, 909,

(1983); Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675 58,

L.Ed.2d. 596, (1979); Papachristou v. City of Jacksonville,

405 US. 156, 92 S.Ct. 839, 31 L.Ed.2d. 110, (1972); Giaccio

v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d.

447,(1965); Wnght v. Georgia, 373 U.S. 284, 83 S.Ct. 1240

10, L.Ed.2d. 349, (1963); Shevlin-Carpenter Co. v.

Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930, (1910).

Next, Allen argued that in the absence of

regulations required to be promulgated by the California

Franchise Tax Board he is not given sufficient notice as to

what constitutes a return or what information is required

to be supplied to the California Franchise Tax Board so as

to avoid criminal prosecution under Section 19401(a), and

is thus denied due process. Lambert v. California, 355

U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d. 228; California Bankers

Assn. v. Shultz 416 U.S. 21, 94 S.Ct. 1494, (1974); U.S. v.

Hicks, 947 F.2d. 1356, 1360, (9th. Cir. 1991).

REASONS FOR GRANTING THE WRIT

In the areas of law discussed above, as well as

relevant sub-parts, California Courts have consistently

rejected or mis-interpreted the rulings and holdings of this

Court. Additionally, California Courts have created

conflicts between their own decisions, which the California

Supreme Court refuses to address.

California Courts have adopted the legal posture

that California State tax statutes are regulatory in nature

or public welfare offenses which fall under the "police

powers” of the state. It is contended, by the California

Courts, that since tax statutes are of this nature, violation

thereof invokes punishment through a criminal and civil

strict liability statute which requires no showing of criminal

intent. People v. Allen, 20 Cal.App. 846 (Dist. 2, 1993);

adie

People v. Kuhn, 216 C.A. 2d 956, 31 C.R. 253, (1963);

People v. Jones, 149 Cal. App.3d a . 41, 197 Cal. Rptr.

273, (1983); cf. People v. Singer 11 CA 3d. Supp. 11, 171

C.R. 587, (1980), (requiring scienter to be read into

criminal tax statute which is silent on the matter of mens

rea.)

Additionally, in People v. Allen, 20 Cal.App. 846

(Dist. 2, 1993), the California Appellate Court found that

the burden of proof required to be met by the a

in a criminal case, (guilt beyond a reasonable doubt), as

opposed to the burden the prosecution must carry in a civil

case, (preponderance of the evidence) was the correct

standard to judge Allen’s guilt and therefore, the jury

instructions were proper.

However, the "standard-of-proof" theory and the

jury instructions thereon, relied upon by the District Court

ot Appeal, is not dispositive of Allen’s question, To Wit: Is

Section 19401(a) unconstitutional because it fails to attach

a higher degree of delinquency, guilt or culpability to the

criminal offense contained therein, so as to distinguish the

civil offense from the criminal offense?

Section 19401(a), as this Court has consistently

taught, is unconstitutionally vague as it offends the ca

notion of "fair play" and adequate notice as it entirely fails

to distinguish the criminal offense from the civil offense,

both offenses which are contained within Section 19401(a).

Finally, the district court of appeal found in the

Allen case that all California tax statutes are self-executing,

and hence, regulations are not required to impleinent the

Statute and give adequate legal notice to the public as to

what is required of the people, despite the statutory

directive of the California legislature, and again, contrary

to this Court’s teachings.

California courts must be brought into line with this

Court’s notions of due process, equal protection under the

law, and what constitutes fair and adequate notice under

the law. California’s conflicting position with this Court’s

holdings cannot continue to co-exist as the Citizens of

California have a right to uniformity of the law so they can

fairly distinguish what conduct the law prohibits. For these

reasons Certiorari should be granted.

STANDARD OF REVIEW

The applicable standard of review for this petition

is derived from federal decisional law, construing Federal

Constitutional principles. Michigan v. Long 463 U.S. 1032,

103 S.Ct. 3469, 3476, 77 L.Ed. 2d 1201, 1214, (1983) ;

Coleman v. Thompson 501 U.S. , 111 S.Ct. 2546, 2557,

115 L.Ed. 2d 640, 659. hes

Questions involving the interpretation of state or

federal law, under the federal constitution, are settled by

the United States Supreme Court, and its decisions will

bind the courts of California. United States v. Reynolds 235

U.S. 133, 35 S.Ct. 86, 90, 59 L.Ed. 162, 168, (1914); Brooks

v. Oakland 160 C. 423, 427, 117 P.433, (1911).

LEGISLATIVE HISTORY OF SECTION 19401

The first Personal Income Tax Law was

introduced as Assembly Bill #1182, January 25, 1935,

approved by the Governor on June 13, 1935. It was

placed under the California Constitution Article XIII, Sec.

26 (a), adopted November 05, 1974.

The Personal Income Tax Act of 1935 was

subsequently repealed. ~ In 1943 it was re-enacted, at

which time it clearly denoted that Segtion 19401 entailed a

civil penalty and a criminal penalty.

During the years 1943 through 1983 Section 19401

read substantially as follows:

"Any person who, with or without intent to

evade any requirement of this part or any

lawful requirement of the Franchise Tax

Board under this part, fails to file any return

or to supply any information required under

this part, or who with or without such intent,

2. California Stats. 1935 ch. 329 pp. 1090

3. California Stats 1943 ch. 659.

4. California Stats 1943, Ch. 659 pp. 2412.

- =

makes, renders, signs, or verifies any false or

fraudulent return or statement, or supplies

any false or fraudulent information, is liable

for a penalty of not more than one thousand

dollars ($1,000). The penalty shall be

recovered by the Attorney General or the

counsel for the Franchise Tax Board in the

name of the people by action in any court of

competent jurisdiction."

Thus, the legislature clearly imposed a civil penalty

and authorized the Attorney General or other counsel to

recover the same in a court of competent jurisdiction.

However, the legislature did not stop at this point, but

continued on to say that:

"The person is also guilty of a misdemeanor

and shall upon conviction be fined not to

exceed one thousand dollars ($1,000) or be

imprisoned not to exceed one year, or both,

at the discretion of the court."

The criminal penalty was raised to $5,000 in 1983. >

The Legislature further provided for recovery of costs of

investigation and prosecution. ” Additionally, as amended,

the prohibitions or omissions contained within former

19401 are now contained within 19401 subsection (a).

All the offensive conduct described in the 1984

amended Section 19401(a), is virtually the same conduct

included in former Section 19401.

Section 19401(a), (b) and (c) are all subject to a

civil penalty of $5,000. ’ Like the pre-1984 amended

Section 19401, the 1984 amended Section 19401(a)

contains no element of scienter. Section 19401(b) appears

to be a specific intent offense requiring affirmative acts on

5. California Stats 1983 Ch. 1102.

6. California Stats 1984 ch. 1490

7. California Stats 1984 ch. 1490.

sta

-9-

the part of the actor, e.g. "Aids, abets, advises, encourages

or counsels any individual to evade the tax.." Revenue

and Taxation Code Section 19401(c) is a specific intent

offense, i.e., “willfully fails to pay."

The last paragraph of Section 19401(c) reads, "The

person is also guilty of a misdemeanor and shall upon

conviction be fined not to exceed five thousand do'lars

($5,000) or be imprisoned not to exceed one year, or both,

at the discretion of the court, together with costs of

investigation and prosecution."

Section 19401, along with its gubsections, was

repealed, effective January 1, 1994, © and is now found

under California Revenue and Taxation Code, Section

19701. The full text of Section 19701 appears in Appendix

at - 22 -.

STATUTORY CONSTRUCTION OF SECTION 19401,

POST 1984 AMENDMENT.

The California Appellate Court incorrectly found

that since the legislature did not change the language of

Section 19401 in its 1984 amendment, after the Kuhn

decision, that fact in itself, was evidence that the

legislature intended Section 19401 to be a strict liability

Statute. Tax statutes are to be strictly construed against

gee authority, Los Angeles v. Jones 13 C.2d 554,

61, 90 P.2d 802, though the interpretation of tax statutes

in all cases, must be reasonable. James v. U.S., 366 U.S.

213, 81 S.Ct. 1052, 6 L.Ed.2d. 246 (1961); Bell v. United

States, 349 U.S. 81, 75 S.Ct. 620, (1955); Estate of Rath, 10

C.2d 399, 75 P.2d 509.

The usual rule of statutory construction calls for the

courts to scrutinize the words of the statute. United States

v. Wilson US. , 112 S.Ct. 1351, 1354-55, 117 L.Ed.

2d 593 (1992). Those are the words that the court is

required to effectuate. Estate of Cowart v. Nicklos Drilling

Co., US. , 112 S.Ct. 2589, 2594-98, 120 L.Ed. 2d

379 (1992). Courts are constrained to follow the plain

-10-

meaning of the words of a statute, and need not look to

\egisiative history where their meaning is clear on their

face. Connecticut Nat'l Bank v. Germain, US.

112 S.Ct. 1146, 1149-50, 117 L.Ed. 2d 391 (1992). If a

Statute speaks with ow & to an issue judicial inquiry into

the statute’s meaning is finished, except in the most

extraordinary circumstances.

Allen pointed out the fact that when Section 19401

was amended in 1984 that the legislature completely

reconstructed it. The legislature broke Section 19401

down into three subsections - a, b, and c- arguably

attaching criminal penalties only to subsection c for willful

failure to pay estimated taxes.

Hence, the legislature did indeed change the

construction and lan nguage of 19401 after the Auhn

decision; said amendment reflecting that only willful

failure to pay over a tax was a misdemeanor. If that is the

case, 19401(a) defining only a civil offense, would be

constitutionally permissible.

However, the California Appellate Courts remain

firm in their findings that Section 19401(a) is both a

criminal and civil, strict liability offense, requiring no

<r If the California Appellate Court is correct and

arm intent must be ascertained, as opposed to

elying on the plain language of the statute, 19401(a) and

its successor, 19701(a), is unconstitutional.

WILLFULNESS MUST BE READ INTO SECTION

19401(a), AS IT IS ACRIME UNKNOWN TO THE

COMMON LAW, AND HENCE NOT A STRICT

LIABILITY STATUTE.

In United States v. Wulff 758 F.2d 1121 (1985) the

Court held that to meet due process requirements, mens

rea was required to be read into a statute when the crime

described was otherwise unknown to the common law and

where there was a substantial penalty attached to the

offense. That Court too, relied upon this Court’s decision

in Morissette v. United States, supra and came to the

opposite conclusion the Allen Court reached, i.e., scienter

must be read into a statute when the statute is silent,

o Ite

where there is a substantial penalty, 9 and the crime is

unknown to the common law. See, Holdridge v. United

States 282 F.2d 302 (8th Cir. 1960); Also see Justice

Brennan’s concurring opinion in United States v. Freed 401

U.S. 601, 613 n. 4, 1112, 1120 n. 4, 28 L.Ed. 2d 356 (1971).

THE GENERAL RULE IS THAT A CRIME HAS TWO

ELEMENTS, AN ACT AND MENS REA (INTENT).

One of the leading cases stating this rule is United

States v. U.S. Gypsum Company, 438 U.S. 422 (1978). The

Court reversed a conviction for _— fixing brought under

Section 1 of the Sherman Act. The trial court instructed

the jury that no mens rea was required to convict.

This Court found that "the existence of mens rea is the rule

of, rather than the exception to, the principles of

Anglo-American criminal jurisprudence."

This Court further found there must be a vicious

eee

9. This Court has decided that the purpose of strict liability is to

regulate activity which presents imminent danger to the public, thereby

imposing a higher standard of care on a person. Strict liability statutes

are not meant solely to punish. Many scholars and state courts have

adhered to this Court’s logic. Morrissette v. United States, 342 U.S. 246,

253-256, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Also See, State v. Dried Milk

Products Co-op., 16 Wis. 2d 357, 114 N.W. 2d 412 (1962); LaFave &

Scott, Criminal Law, Section 31 p. 218 (1972); State v. Collova, (1977)

255 N.W. 2d 581; Hall, General Principles of Criminal Law, c. X (2d Ed.

1960); LaFave & Scott Criminal Law, 218-223 (1927); Sayre, Public

Welfare Offenses, 33 Colum. L. Rev. 55 (1933); Mueller, On Common

Law Mens Rea, 42 Minn. L. Rev. 1043 (1955); Hart, The Aims of the

Criminal Law, 23 Law & Contemp. Prob. 401 (1958); Harring, Liability

Without Fault; Logic & Potential of a Developing Concept, 1970 Wis. L.

Rev. 1201; State v. Campbell, 536 P. 2d 105 (Alaska 1975); Hentzner v.

State, 613 P.2d 821 (Alaska 1980).

Thus it would appear, just by reason of the severity of the

punishment which can be imposed under Section 19401, that it must fall

as unconstitutional unless mens rea can be read into the statute.

10. Jd. at 435, 436.

«wei

will to constitute a crime. |! This vicious will requirement

was found to be an indispensable element of antitrust

cases, even if sophisticated.

It was also held that "Mere omission . . . of intent

{in the statute} will not be construed as gyminating that

element from the crime denounced .. .”

This Court has made it clear that strict liability

offenses are limited tg specific circumstances and are

generally disfavored. *~ If Congress leaves out an intent

requirement, the Court will very often find some level of

intent.

Even in cases where strict liability is imposed, this

Court still analyzes the statute’s scope and reach to

determine if it falls into the narrow category established.

Section 19401 must be analyzed under this Court’s

rigorous “regulation of business practices test" to

determine if it becomes an exception to the general rule

that mens rea is required in all criminal cases. This is the

first step of analysis this Court requires in strict liability

statutes.

The second step of analysis is to determine what

"person" is liable if a regulation of business practice burden

is found. The individual must be in a reasonable corporate

capacity dealing with a regulatory scheme involving the

public’s health, safety and welfare. For individuals this is

the exception to the rule requiring mens rea. So, while

individuals may be found criminally liable under strict

liability statutes, both elements listed above must be found

to exist. To hold-otherwise would broaden the reach of a

strict liability statute, overriding the individual’s right to a

fair trial, which mandates that the prosecutor must prove

all indicia of a crime, including, but not limited to, criminal

11. Id. at 436, 437.

12. Quoting Morissette, 342 U.S. at 263, Id. at 437.

13. Id. at 438.

» Me

intent. 14

FAILING TO FILE TAX RETURNS IS NOT A

REGULATORY OR PUBLIC WELFARE OFFENSE

FALLING WITHIN THE POLICE POWER OF THE

STATE.

The California Appellate Court was aiso in error in

holding that Tax Statutes are police powers which are

regulatory in nature, and therefore public welfare offenses.

Apparently, in reaching this holding the Appellate Court’s

position is that the collection of taxes is of such paramount

importance that all tax statutes are thus regulatory in

nature. However, the Appellate Court pointed to no

authority to support this proposition. Moreover, this case

is not dealing with the collection of taxes -- a point which

the California Courts keep missing when dealing with

Section 19401. We are dealing here, with Allen’s alleged

failure to file a piece of paper, i.e., a tax return, with the

State. The collection or payment of taxes is not at issue

here!

Allen does not dispute the compelling need for the

collection of taxes and that is exactly why the state

legislature has decided to supply the California Franchise

Tax Board with a plethora of summary administrative

collection procedures which require no judicial

intervention to employ, and insures the swift and

unimpeded collection of taxes.

Additionally, the imposition and collection of taxes

is not a power which falls under the police powers of the

State as it is not that type of law which could involve

14. Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d

434 (1985); United States v. Freed, 401 U.S. 601, 609 (1971); Also see,

United States v. International Minerals & Chemical Corp., 402 U.S. 558,

564-565, 91 S.Ct. 1697, 1701-1702, 29 L.Ed. 2d 178 (1971); United States

v. Dotterwich, 320 U. S. 277 (1943); United States v. Park, 421 U.S. 658

(1975); United States v. White, 322 U.S. 694 (1944); Bellis v. United

States, 417 U.S. 85 (1974); United States v. A. P. Trucking Company, 358

U.S. 121 (1958); New York Central and Hudson River Railroad Co. v.

United States, 212 U.S. 481 (1909).

me” FS

"widespread injury to the public." Rather, this power falls

within the taxing powers of the state found under Article

XIII of the California Constitution.

And, to the extent that United States v. Balint 258

U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604, (1922) implied in its

dictum that all tax statutes fell within a strict liability

context; this theory was dispelled in Spies v. U.S., 317 U.S.

492, 63 S.Ct. 364, 87 L. Ed. 418 (1943).

Therefore, the California Appellate Court’s opinion

that Section 19401(a) and all other tax statutes are

regulatory in nature and hence, strict liability statutes

enacted under the police powers, is clearly in error.

THE CALIFORNIA APPELLATE COURT LEFT

OPEN THE QUESTION WHETHER SECTION

19401(a) WAS UNCONSTITUTIONAL BECAUSE IT

FAILS TO ATTACH A HIGHER DEGREE OF

DELINQUENCY, GUILT OR CULPABILITY TO THE

CRIMINAL OFFENSE CONTAINED THEREIN, SO

AS TO DISTINGUISH THE CIVIL OFFENSE FROM

THE CRIMINAL OFFENSE.

The twist the Appellate Court put on the question

Allen presented is alarming. It was the Court's position

that Section 19401(a) was not unconstitutional since a

criminal conviction requires a higher degree of proof than

does a civil proceeding and thus the correct jury

instructions as to proof beyond a reasonable doubt was

given to the jury.

Allen did not present a burden-of-proof question to

the Appellate Court for resolution, and; the burden of

proof which must be present in a criminal preaentins as

opposed to a civil proceeding in no way disposes of the fact

that Allen’s alleged conduct, i.e., failure to file a return,

can arbitrarily be punished either civilly or criminally,

under Section 19401(a), without warning, and without

establishing a higher degree of guilt or culpability for the

criminal offense, which would distinguish it from the civil

offense. As the Appellate Court noted, "The doctrine of

strict liability is not a standard of proof concept." And

neither is Allen’s argument.

What is being challenged is the arbitrary and

discriminatory enforcement of, and punishment under a

Wists o28. hibit Wi

- $8

criminal and civil statute for the identical standard of

conduct -- not the standard which proves guilt in a criminal

or civil ery Grayned v. City of Rockford, 408 U.S.

104, 108 109, 92 S.Ct. 2294, 33 L. Ed. 2d 222, (1972);

Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed.

1095, (1927).

So, by effectively answering a question not

presented to it, the Appellate Court left open the question

whether 19401(a) was unconstitutional because it defined

both a criminal and civil offense without establishing a

higher degree of deliquency, guilt, or culpability for the

criminal offense so as to distinguish it from the civil

offense; as the Appellate Court only re-iterated the

well-established principle that proof beyond a reasonable

doubt is needed to convict in a criminal case, and a

preponderance of evidence is needed in a civil case.

The ambiguous combination of civil and criminal

liability within Section 19401(a) fails to es ablish a penalty

suitable to every degree of delinquency. *~ Instead,

19401(a) establishes civil and criminal penalties for the

same degree of delinquency.

In answer to a similar question, the validity of a

Minnesota civil and criminal trespass statute was

determined by this Court, in Shevlin-Carpenter v.

Minnesota, supra.

In Shevlin, a Minnesota trespass statute niade

cutting and removing timber from state lands without a

permit punishable by double damages for "casual and

involuntary" trespasses and treble damages, fine and

imprisonment for "wilful" trespasses. Section 7 of the

statute contained the provisions relating to double and

treble damages. A separate paragraph, Aesignated the

felony, expressly requiring willfulness. *° The Defendants

in Shevlin were initially adjudged "willful violators" of the

statute and were assessed damages at treble the value of

the timber. The Supreme Court of Minnesota reduced the

judgment to double damages finding the trial court’s

15. Spies v. United States, supra.

16. Id., at page 57

«16 <

finding of willful trespass unsustained by the evidence.

This Court affirmed the judgment which assessed

double damages against the defendants. Based on the

Court’s rationale, Allen asserts that had the Shevlin Court

considered 19401(a), it is probable that it would have held

19401(a) unconstitutional, as there is no distinction

between the civil offense and the criminal misdemeanor.

As argued by Allen in the State Court, and under

the rationale of this Court, 19401(a) is unconstitutional as

it allows for arbitrary and discriminatory enforcement.

ALLEN WAS NOT GIVEN NOTICE BY STATUTE OR

REGULATION AS TO WHAT RETURN HE WAS

REQUIRED TO FILE, OR WHAT INFORMATION HE

WAS REQUIRED TO SUPPLY.

The Appellate Court also found that Allen had

adequate notice of Section 19401(a) requirements. Allen

did not present such a question, as Section 19401(a) does

not require anything, it merely is designed to punish the

failure to perform under some other unidentified Section

of the Revenue and Taxation Code.

Allen contended that not only did Section 19401(a)

fail to advise him of a lawful requirement or what return or

information is to be supplied, but additionally the

California Personal Income Tax Laws are also wholly

inadequate to give notice to Allen of what the law requires

- and therefore Allen cannot be punished for failing to do

that which the law does not require. Viereck v. United

States, 318 U.S. 236, 63 S.Ct. 561, (1943).

The Appellate Court also must have recognized the

deficit left by the lack of regulations to carry out the

Statutory commands ofthe legislature, which are provided

for by Section 19253, *’ as it could only direct Allen to

Division 2 Part 10, Chapter 17, Articles 1 and 2 of the

Revenue and Taxation Code, without citing the specific

17. 19253. Rules and regulations, retroactivity. The Franchise Tax

Board shall prescribe all rules and regulations necessary for the

enforcement of this part and may prescribe the extent to which any

ruling or regulation shall be applied without retroactive effect.

Bae iil = iad ea ae

a.

sections of the law which require the specific type of return

the law requires, or the information which the law requires

to be placed on the return.

There are no specifics -- For Example: Under

Section 18401 we know that "Every individual taxable . . .

shail make a return". How can one determine, from the

broad language of the statute what constitutes a return

under Section 18401 by examining Articles 1 and 2 of

Chapter 17? Simply, it cannot be determined, so one

presumably would have to consult the regulations to

determine the return to be used. See, U.S. v. Hicks, 947 F.

2d 1356, (9th Cir. 1991). But there are no regulations to

consult, as they were repealed in 1982.

Merely because the Franchise Tax Board

distributes blank forms throughout the State, pursuant to

Section 18431, a legal duty to use that form does not arise

unless the law compels the use of the form, and gives

notice to the public that this is the form authorized by law.

Section 18431 requires nothing of the public. *° Rather it

directs the Franchise Tax Board to distribute blank forms,

said form to be executed under penalties of perjury when

"made under any provision of this part or regulations."

Neither Article 1, nor Article 2 of Chapter 17 of the

California Personal Income Tax Laws gives Allen notice of

what the law requires and there are no regulations which

would provide Allen with adequate notice of what the law

requires. California Bankers Assn. v. Shultz, 416 U.S. 21, 94

S.Ct. 1494, (1974). ?

Therefore, in the absence of regulations which

inform Allen of the specific return to file, or specific

information to furnish, there is no lawful requirement for

Allen to file a return or supply information for which he

can be punished. To cure this, all the California Franchise

Tax Board has to do is emulate the Internal Revenue

Service and enact regulations.

18. Section 18431 appears in the Appendix at - 24 -.

- 18 -

CONCLUSION

The California Appeilate Courts have

unhesitatingly departed from this Court’s holdings when

interpreting strict liability laws, and concepts.

Additionally, the California Supreme Court fails to review

and correct the lower appellate courts’ flawed reasoning.

This failure affects the ee of each citizen in the State of

California as every citizen is subject to arrest, trial, and

conviction for violation of a law, even in the absence of

mens rea, so long as the California State Legislature

remains silent regarding scienter when enacting the

criminal statute.

Additionally, the California Court of Appeai,

Second Appellate District failed to address the

constitutionality of Section 19401 inasmuch as 19401 does

not distinguish between its criminal and civil application of

the statute.

Finally, the California Appellate Courts have

wrongly determined that the California Taxing Statutes are

self-executing and that the absence of regulations does not

deprive a citizen of fair notice under the due process

clause of the United States Constitution.

For the reasons set forth hereinabove, a Writ of

Certiorari should issue to review the judgment of the

California Court of Appeal, Second Appellate District,

Division Three.

Respectfully Submitted,

Dated: SG,

SALLE:

RALPH G. ALLEN

13325 Sproule Avenue

Sylmar, California 91342