Allen v. Dameron

¶1(concurring)

¶2¶37 I agree with the majority’s answer to the certified questions, but I write separately to emphasize the limits of those holdings.

¶3¶38 The first certified question asks whether “an officer, vice principal, or agent of an employer [is] liable for a deprivation of wages under RCW 49.52.050 when his or her employment with the employer (and his or her ability to control the payment decision) was terminated before the wages became due and owing.” Order Vacating J. & Certifying Questions to Wash. Supreme Ct., Allen v. Dameron, No. C14-1263RSL, at 3-4 (W.D. Wash. Apr. 28, 2016) (Order). The majority says that the answer is yes because (1) those entities are listed as potential defendants in the cited statute and (2) termination of those entities’ employment prior to their payday does not insulate them from liability. Majority at 703-06. It concludes that this means that such entities “may be held personally liable under the WRA [(wage rebate act), RCW 49.52.050].” Id. at 696 (emphasis added). I agree.

¶4¶39 I write separately to clarify that “may” means “may.” The other prerequisites to WRA liability must still be met before such liability can attach. Specifically, plaintiffs must still prove the statute’s mental element: that the deprivation of wages was done “[w]ilfully and with intent to deprive.” RCW 49.52.050(2).

¶5¶40 The majority is generally correct that the WRA must be liberally construed to advance the legislative purpose “ ‘to protect employee wages and assure payment.’ ” Majority at 705 (quoting Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 159, 961 P.2d 371 (1998)). But this mental *713element of the statute we are construing today—RCW 49.52.050(2)—is not subject to a liberal construction, for two reasons.

¶6¶41 First, RCW 49.52.050(2) is not ambiguous. The legislature clearly and expressly included within that statute the mental element of “[w]ilful[ness] and . . . intent to deprive.” RCW 49.52.050(2). When a statute contains such an explicit mens rea requirement, the courts must enforce it.

¶7¶42 Second, RCW 49.52.050(2) is a criminal statute. It states that any covered person who commits any act listed in subsections (l)-(5) “[s]hall be guilty of a misdemeanor.” RCW 49.52.050. Thus, even if it were ambiguous, it would be subject to a strict, not a liberal, construction.16

¶8¶43 I therefore agree with the majority’s answer that the entities listed in the first question, which are the same as the entities listed as potential defendants in RCW 49.52-.050, “may” be held liable. But the plaintiffs in this case must still prove the other prerequisites to WRA liability, including willfulness and intent, in order to prevail.

¶9¶44 The second certified question asks whether a defendant’s “participation in the decision to file the chapter 7 bankruptcy petition that effectively terminated his or her employment and ability to control payment decisions alter[s] the analysis” and, “[i]f so, how.” Order at 3-4. Once again, the majority correctly answers in the affirmative and explains that, in the context of the record we have been *714supplied with in this case, “an officer’s participation in the decision to file the chapter 7 bankruptcy petition alters the WRA analysis because it tends to show willfulness on the part of the officer.” Majority at 709.

¶10¶45 The majority does, however, go on to state that we have “specifically rejected a ‘financial inability to pay’ exception to the WRA.” Id.(quoting Schilling, 136 Wn.2d at 164-66); see also id.at 709-10 (quoting Morgan v. Kingen, 166 Wn.2d 526, 536-37, 210 P.3d 995 (2009)).

¶11¶46 Once again, I write to emphasize my understanding that this is a holding limited to the particular facts presented here. Indeed, the majority could not completely reject a “financial inability to pay” defense to criminal liability without contradicting controlling United States Supreme Court precedent. Bearden v. Georgia, 461 U.S. 660, 672-73, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983) (revoking probation for nonwillful failure to pay fine “would be contrary to the fundamental fairness required by the Fourteenth Amendment [to the federal constitution]”). Thus, despite some broad statements in the majority (and in the Schilling and Morgan decisions on which it relies) about financial inability to pay being irrelevant to criminal consequences, I take the majority’s actual holding as far more narrow. It is a holding about timing:

[D]efendants . . . say they lacked control. However, the defendants misapprehend when having control is critical in circumstances of bankruptcy. ... A bankruptcy does not excuse the willfulness of an individual’s exercise of his or her control to not pay wages, especially in circumstances where the decision to file for chapter 7 bankruptcy is controlled by the individual exercising control over wages.

¶12Majority at 710.

¶13¶47 To the extent the majority opines that the defendants’ decisions to file a chapter 7 bankruptcy petition supports an inference of willfulness, I read that as a holding based on the facts of this case. Specifically, as the majority *715explains, “the defendants chose to retain Allen, chose when to file for bankruptcy, and, most importantly, chose to withhold his wages.” Id. at 710-11.

[T]he defendants had full control over the decision to pay wages up until they chose to file for chapter 7 bankruptcy. Then, the defendants chose to put further payment of employee wages beyond their control by filing a chapter 7 bankruptcy petition. In addition, the defendants chose to pay insurance costs with company funds before they paid employee wages in full.

¶14Id. at 711. Given these specific facts, I completely agree with the majority’s conclusion that “defendants’ decision to put the payment of employee wages beyond their control by filing a chapter 7 petition tends to show their willful withholding of wages under the WRA.” Id.

¶15¶48 With these observations about the limits of the majority’s holding, I concur.