An ancient maxim of the law is ignorantia juris non excusat, or ignorance of the law does not excuse. Put another way, it is presumed that the public knows the laws, and a defense of ignorance is typically not allowed. This principle is at the heart of the recent decision by the state supreme court in State v. Miller, ___ N.C. ___, (June 9, 2017).
Miller was convicted of the relatively new crime of possessing a pseudoephedrine product after having been convicted of a methamphetamine-related offense. The offense is found at G.S. 90-95(d1)(1)(c), part of a subsection prohibiting possession of precursor chemicals, and is a Class H felony. That prohibition became effective Dec. 1, 2013, and applies to offenses committed on or after that date. In effect, it bans anyone with a meth-related conviction from possessing pseudoephedrine, a common decongestant medicine (and meth ingredient). Around five weeks after the effective date, Miller was charged with violating it after purchasing allergy medicine containing the substance. Defense counsel filed a motion to dismiss on grounds that the statute was unconstitutional as applied to Miller. The trial court denied the motion and Miller was convicted at trial.
Court of Appeals decision
On appeal, the court of appeals unanimously reversed. They first rejected the defendant’s mens rea argument-that is, that the statute was unconstitutional because it lacked an element of intent. The court found that the statute was designed to be a strict liability offense, and declined to add an element of intent where the legislature had chosen not to include it in the language of the statute.
The court of appeals went on to hold, however, that the lack of notice to Miller that his conduct was illegal was a due process violation under Lambert v. California, 355 U.S. 225 (1957). Lambert is a seminal case on the requirement of fair notice under the Due Process Clause. The Court in Lambert struck down an ordinance that required felons to register with the police department within five days of arriving in Los Angeles. Finding that there was no evidence that the defendant was aware of the requirement to register, the conviction could not stand, as due process required that the defendant have notice of the crime at issue. The Lambert decision explicitly recognized this fair notice requirement as an exception to the general rule that ignorance of the law is no defense. Relying on Lambert, the court of appeals in Miller concluded, “The absence of any notice to Miller that he was subject to serious criminal penalties for an act that is legal for most people, most convicted felons, and indeed, Miller himself only a few weeks previously, renders the new subsection unconstitutional as applied to him.” State v. Miller, ___ N.C. App. ___, 783 S.E.2d 512 (2016).
The court’s reasoning, in part, was that other regulations pertaining to pseudoephedrine are required to be posted where the substance is sold, giving notice of what is required for a lawful sale of the drug. G.S. 90-113.54 (2012). For instance, pseudoephedrine is subject to amount-purchase limits, and purchases are logged into a national database (among other requirements). Given that these related pseudoephedrine regulations were posted in a way to ensure reasonable notice, and that Miller followed those procedures for his purchase, it could not be assumed that Miller was aware of the change in the law, or even had reason to inquire about any changes in the law. Though not explicitly mentioned in the decision, Miller was on probation at the time, and the probation officer neither knew about this change in the law nor advised Miller about it. Brief of Defendant-Appellant at 5, State v. Miller, 783 S.E.2d 512 (2016). Furthermore, the pharmacist that sold the substance to Miller thought the transaction was permissible as well. Slip op. at 20. Because this was a strict liability offense applying to only a specific class of felons for what was otherwise (and formerly) legal conduct, some fair warning was required; without it, the statute violated due process. Slip op. at 27. Thus, according to the court of appeals, ignorance was a defense for Miller under these particular circumstances.
Supreme Court decision
Relying on Bryant v. North Carolina, 359 N.C. 554 (2005), a divided Supreme Court reversed. Bryant involved a Lambert challenge to the state’s failure to register as a sex offender statute. Bryant was ordered to register for life in South Carolina, but upon moving to North Carolina, failed to register and claimed ignorance of the requirement to register in this state. The court there rejected his challenge and found that the circumstances in his case were such that a reasonable person in his shoes would know to at least inquire as to a duty to register.
The Miller majority found that, under Lambert and Bryant, where the defendant’s conduct is not “wholly passive”, the Lambert exception did not apply. “Since defendant’s conviction rests upon his own active conduct rather than a ‘wholly passive’ failure to act, there is no need for us to determine whether the surrounding circumstances should have put the defendant on notice that he needed to make inquiry into his ability to lawfully purchase products containing pseudoephedrine.” Slip op. at 21. The court reasoned that the fair notice requirement was satisfied because the defendant knew he was purchasing pseudoephedrine and knew he had a prior meth conviction. The Supreme Court passed on the question of whether a mens rea should be read into the statute as a matter of due process, holding that this question was not properly preserved. Thus, the court did not decide whether the statute should be read to require an intent or knowledge element.
The two dissenting justices did not read the Lambert exception so narrowly. The dissenters observed: “Regarding the application of constitutional due process principles to the operation of statutes that create an imposition upon individuals convicted of a certain class of offenses that does not exist for the general population, I find the defendant in Lambert and the current defendant to be similarly situated.” Slip op. at 25 (Morgan, J., dissenting). The dissent continued the comparison, stating, “Like Lambert, there has been no showing made that of the probability that defendant knew of this change in the law which rendered illegal for him such activity that was legal for him a mere 36 days prior to his arrest.” Id. at 27. Bryant, the dissent said, was distinguishable. There, the defendant reasonably should have known of his duty to register. Among other circumstances, he was ordered to register for life. Here, Miller had no reason to suspect the law on pseudoephedrine had changed. Further, the dissent thought the emphasis of the majority on passive versus active conduct was too restrictive. The language of Bryant “defined the crucial phrase ‘wholly passive’ as turning on whether or not the attendant circumstances could reasonably be seen as providing notice.” Id. at 31. There being no such circumstances here, the dissenters would have found the statute unconstitutional as applied to Miller.
End of the Story?
Since Miller involves a federal constitutional challenge to a state statute, any appeal from the N.C. Supreme Court’s decision is directly to the U.S. Supreme Court. The majority in Miller left the question of any required mental state in the statute open. So, perhaps we will see the courts weigh in again on this statute in a case where the mens rea argument is preserved. An interpretation of the statute that required some type of intent might avoid the somewhat tricky (at least to me) constitutional questions. If there’s further action on this issue, I’ll be sure to follow up with another post. In the meantime, defense lawyers representing clients convicted of a meth-related offense are well-advised to notify them of the ban on their possession of pseudoephedrine.