ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVE CARTER RICHARD KIEFER
Attorney General of Indiana DARLENE SEYMOUR
Kiefer & McGoff
CYNTHIA L. PLOUGHE Indianapolis, IN
Deputy Attorney General
STATE OF INDIANA, ) ) Appellant (Defendant Below ), ) ) 49S02-0212-CR-671 v. ) in the Supreme Court ) JOHN C. DUGAN, ) 49A02-0108-CR-513 ) in the Court of Appeals Appellee (Plaintiff Below ). )
August 22, 2003
The trial court declined to dismiss the entire indictment, but granted Dugans motion
to dismiss Counts II and III. It subsequently granted the States motion
to dismiss Count I.
The State appealed. The Court of Appeals affirmed the trial courts dismissal
of the official misconduct counts, on a rationale different than that expressed by
the trial court.
State v. Dugan, 769 N.E.2d 235, 238 (Ind. Ct.
App. 2002). It did not address whether Ind. Code § 7.1-5-5-2 as
written applies to holders of permits; rather it upheld the trial courts decision
on grounds that the Official Misconduct statute was not the appropriate statute with
which to charge Dugan because there was another statute applicable. Id.
We grant transfer to determine: 1) whether Ind. Code § 7.1-5-5-2 is
applicable to holders of a permit and 2) whether the State has discretion
in charging a defendant with any applicable statute where multiple statutes are applicable.
While Dugan claims he did not violate § 7.1-5-5-2 because it does not
apply to someone already in possession of a permit, the State contends that
receiving a permit is an ongoing processthat the permittees holding of a permit
is a continuing action of receiving a permit. Essentially, the State argues
that the term receiving includes permit holders.
The trial court concluded that the language in Ind. Code § 7.1-5-5-2 was
unclear, and that if the legislature intended to criminalize the conduct described in
Counts II and III involving a person holding a permit, they could have
so stated. Put another way, it agreed with Dugan that § 7.1-5-5-2
does not prohibit such officials from receiving gratuities from persons who already hold
The primary goal in statutory construction is to determine, give effect to, and
implement the intent of the legislature. Collier v. Collier, 702 N.E.2d 351
(Ind. 1998). [W]ords are to be given their plain, ordinary, and usual
meaning, unless a contrary purpose is shown by the statute itself. Cox
v. Workers Comp. Bd., 675 N.E.2d 1053, 1057 (Ind. 1996). It is
just as important to recognize what the statute does not say as it
is to recognize what it does say. Clifft v. Indiana Dept. of
State Revenue, 660 N.E.2d 310 (Ind. 1995). Because courts must give deference
to such intent whenever possible, courts must consider the goals of the statute
and the reasons and policy underlying its enactment. MDM Inv. v. City
of Carmel, 740 N.E.2d 929, 934 (Ind. Ct. App. 2000).
The legislature itself has articulated the purposes of Title 7.1: to protect the economic welfare, health, peace and morals of the people and to regulate and limit the manufacture, sale, possession and use of alcohol and alcoholic beverages. Ind. Code Ann. § 7.1-1-1-1(a), (b) (West 1982). It is clear that these purposes apply equally, if not more so, to holders of permits as to those applying for a permit.
To accomplish such purposes, the ABC issues permits which entitle the permit holder to deal in alcoholic beverages. See Ind. Code Ann. §§ 7.1-3-1-1, 7.1-1-3-29 (West 1982). This entitlement, however, is hardly unlimited. The state excise police officers are ABC employees charged with the duty and power to enforce the provisions of Title 7.1. Ind. Code Ann. §§ 7.1-2-2-9 (West 1982 & Supp. 2002). As such, they can revoke or suspend a permit for a violation of one of the provisions. Ind. Code Ann. § 7.1-3-23-2 (West 1982). There are also statutory prohibitions imposed upon ABC employees so as to maintain the integrity of the commission. One such prohibition is that contained in Ind. Code § 7.1-5-5-2 (unlawful to receive gratuity, commission, or profit of any kind from a person applying for or receiving a permit under this title).
Dugan points out that other provisions of Title 7.1, particularly the section immediately
preceding the one at issue, Ind. Code § 7.1-5-5-1, include the term permittee,
which is defined as a person who is the holder of a valid
permit. On such basis, Dugan argues that the fact that Ind. Code
§ 7.1-5-5-2 says, applying for or receiving a permit and omits the term
permittee demonstrates that the legislature purposely excluded permittees.
Actually, Title 7.1 uses a variety of terms to describe someone who possesses
a permit. It includes phrases such as holder of a permit, person
or entity that has a permit, or a person to whom a permit
has been issued.
See footnote Thus, omitting the word permittee is not by itself
compelling proof of the legislatures objective.
We must consider the goals and policy underlying the statutes enactment. The
General Assembly has told us at least one thing concerning its intent:
that the provisions of Title 7.1 should be liberally construed. Ind. Code
Ann. § 7.1-1-2-1 (West 1982).
Two interpretations can be reasoned by the fact that the provision does not
use the word permittee. The legislatures intent could have been to include
only persons in the process of applying for a permit, or it could
have intended to make the provision all-inclusive, meaning applicants
The first interpretation gives the word receiving its literal meaning: coming into
possession of. Merriam Websters Collegiate Dictionary 1894 (10th Ed. 1993). Under
this approach, the statute would apply to a person only from the moment
he or she fills out an application form to the moment the permit
is physically handed over to the applicant (i.e., the moment when the applicant
is receiving the permit).
Under the second interpretation, one could deem receiving to mean someone receiving the
benefits of a permit, which would include a permit holder. Thus the
statutory prohibition would be effective upon both applicants and holders.
Because statutes are examined as a whole, it is often necessary to avoid
excessive reliance on a strict literal meaning or the selective reading of individual
words. Collier v. Collier 702 N.E.2d 351, 354 (Ind. 1998). The
legislature is presumed to have intended the language used in the statute to
be applied logically and not to bring about an unjust or absurd result.
Riley v. State, 711 N.E.2d 489 (Ind. 1999). Thus, we should
consider the objects and purposes of the statute as well as the effects
and repercussions of such an interpretation. State v. Windy City Fireworks, Inc.,
600 N.E.2d 555, 558 (Ind. Ct. App. 1992), adopted by 608 N.E.2d 699
Dugan argues that the word receiving must be given its plain and ordinary meaning, and someone who already has a permit is not coming into the possession of a permit. (Appellee Br. at 16-17.) He also asserts that a person receiving a permit is someone in the process of being issued a permit, but is not yet a permit holder. (Appellee Br. at 14.)
Interpreting receiving to mean someone in the process of being issued a permit, but is not yet a permit holder, would render the term redundant and hence useless since a person applying for a permit is also someone in the process of being issued a permit but not yet a permit holder. Had the legislature intended this section to apply only to people in the process of being issued a permit but not yet a permit holder, it could have just as easily stopped at applying for. The fact that it went on to add or receiving suggests it intended to include more than just applicants.
Moreover, the effect of using the literal definition of receiving would be that
an ABC employee would have to be handing over the permit to the
applicant with one hand and accepting the gratuity with the other hand in
order to violate the statute. Any point after that would fall outside
the statutory prohibition because the person would no longer be receiving a permit;
he would now be a permit holder. This would be an illogical
The second interpretation better effectuates the purposes of the statute, namely regulating activities
concerning alcoholic beverages. Such purposes are premised upon activities such as the
sale, possession, and use of alcoholic beverages. In order for Ind. Code
§ 7.1-5-5-2 to be in line with the purposes of Title 7.1, it
must also apply to holders of permits because a permit is what allows
such activities to take place. A permit entitles its holder to manufacture,
rectify, distribute, transport, sell, or otherwise deal in alcoholic beverages. Ind. Code
Ann. § 7.1-1-3-29 (West 1982).
As Dugan points out, such permits are valuable and limited in number.
A permit is only valid for one year, unless otherwise stated in Title
7.1. Ind. Code Ann. § 7.1-3-1-3 (West 1982 & Supp. 2002).
At the end of the year, the permit is fully expired and null
and void, and the permittee must go through the same application process as
any other person applying for the first time in order to renew his
permit. Id. Thus, a person renewing a permit is in effect
obtaining a new one.
The General Assembly was clearly worried about officers being improperly influenced by people
seeking a permit. Because a holder of a permit must renew his
permit every year, he stands in the same shoes as an applicant.
A permit holder may also exert improper influence on an ABC officer so
as to secure renewal of his permit. There is no other statute
in Title 7.1 that prohibits ABC officers or employees from accepting gratuities from
permit holders. Considering the value of such permits, we find it hard
to believe that the legislature purposely excluded from the statute persons already in
possession of a permit, as Dugan contends. (See Appellee Pet. for Transfer
at 3.) Further, we cannot conceive of any persuasive public policy reason
for excluding permit holders.
Liberally construing the provisions in Title 7.1 and analyzing its delineated purposes, we
opt for the second liberal interpretation and conclude that the legislatures use of
the term "receiving indicates its intent to prohibit acceptance of gratuities by an
ABC employee or officer from someone already receiving the benefits of a permit,
namely a permit holder or permittee. The alternate interpretation would allow an
officer to freely accept gratuities by merely waiting until the permittee holds the
permit in hand before the ABC employee takes a payoff. We do
not think the legislature intended such a result. We therefore conclude that
the trial court erred in dismissing the States official misconduct charges against Dugan.
On appeal, the court held the official misconduct statute was not the appropriate
statute with which to charge Dugan. Dugan, 769 N.E.2d at 238.
It said that while Ind. Code § 35-44-1-2 may generally apply to a
person who violates Ind. Code § 7.1-5-5-2, Ind. Code § 7.1-5-1-8 is intended
to cover violations of Title 7.1 that do not have a specific penalty
already attached. Id. Because § 7.1-5-5-2 does not provide a specific
punishment for the prohibited conduct, the Court of Appeals held that § 7.1-5-1-8
was the appropriate statute with which to charge Dugan. Indiana Code §
7.1-5-1-8 provides: A person who violates a provision of this title for
which no other penalty is provided commits a Class B misdemeanor.
The State contends that it has discretion concerning the filing of charges.
We agree. Where multiple statutes are applicable under given circumstances, the State
has the discretion of prosecuting under any or all of the applicable statutes.
See Hendrix v. State, 759 N.E.2d 1045 (Ind. 2001); Skinner v. State,
736 N.E.2d 1222 (Ind. 2000); Adams v. State, 262 Ind. 220, 314 N.E.2d
53, 56 (1974). Here, both Ind. Code §§ 7.1-5-1-8 and 35-44-1-2(1) can
apply. The State chose to charge Dugan under the latter statute, which
proscribes official misconduct.
Although the language of Ind. Code § 35-44-1-2(1) is broad and general, the
heart of the issue in an official misconduct charge is explicit: whether
the act was done by a public official in the course of his
official duties. See Daugherty v. State, 466 N.E.2d 46 (Ind. Ct. App.
1984) (Judge Ratliff concurring). There must be a connection between the charge
and the duties of the office. A charge for misconduct must rest
upon criminal behavior that is related to the performance of official duties.
See e.g. State v. Schultz, 367 A.2d 423 (N.J. 1976) (forgeries of endorsements
on checks received in payment of traffic fines which forgeries were done by
clerk receiving the checks). Needless to say, if the misconduct bears no
relation to the official duties, there is no official misconduct. Id.
See e.g. Kauffman v. Glassboro, 437 A.2d 334 (N.J. Super. Ct. App. Div.
1981) (burglary by a police officer held unrelated to official duties).
In the case at bar, Dugan was employed as a state excise police
officer for the Indiana ABC. The Indiana State Excise Police is the
enforcement arm of the ABC, charged with the primary responsibility of policing the
alcoholic beverage industry in Indiana.
See footnote The excise police enforce the laws that
regulate permit holders those who are legally permitted to sell and serve
alcoholic beverages, as well as those not legally entitled to sell alcoholic beverages.See footnote
Indiana Code § 7.1-5-5-2 makes it unlawful for an officer of the commission
to receive a gratuity from a person applying for or receiving a permit
to sell alcoholic beverages. A violation of Ind. Code § 7.1-5-5-2 obviously
bears a significant connection to the official duties of an excise officer.
That there is another equally applicable statute is of no consequence. Therefore,
it was appropriate and within the States discretion to decide to charge Dugan
with official misconduct.
SULLIVAN and BOEHM, JJ., concur.
RUCKER, J., concurs as to Part II.
DICKSON, J., dissents with separate opinion in which RUCKER, J., joins.
DICKSON, Justice, dissenting.
Despite the majority's elaborate analysis of the interpretation of the word "receiving" as it appears in Indiana Code § 7.1-5-5-2, I believe that this criminal statute must be narrowly construed, in accordance with several well recognized due process principles--variously framed in our jurisprudence as the "void for vagueness doctrine," the "rule of lenity," and the "fair notice requirement."
The "void for vagueness" doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). The "fair notice" requirement "give[s] a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954). The rule of lenity is premised on two ideas: first, " 'a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed' " and second, legislatures and not courts should define criminal activity. United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 522, 30 L.Ed.2d 488, 496-97 (1971) (quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816, 818 (1931)). These principles work in tandem towards one result: the strict construction of penal statutes. See Healthscript, Inc. v. State, 770 N.E.2d 810, 815-16 (Ind. 2002); Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000).
Because I believe that the majority's expansion of the word "receiving" to encompass the holder of a permit is a violation of these principles, I respectfully dissent.
RUCKER, J., concurs.