Criminal Child Support Statute Requires Proof of Failure to Provide Both “Care” & “Support”

State v. Nelson, Minn.S.Ct., 2/12/2014.  You know those Ford commercials - "nuts or bolts" - or, more apropos here - "loud or clear" - well that's what's going on here.  In a cacophony of opinions, Justice Stras  has everyone running for the dictionary.  His definitions carry the day over those of Justices Dietzen and Lillehaug.  The result is to gut Minnesota's criminal child support law.  Like, can't be done.  If defendant baby daddy gave the kid a Snickers - or maybe a lot of Snickers, that's going to be the next battle royale - then he's provided the "care" to  escape criminal liability which requires a failure to provide "care and support".  Justices Page, Anderson and Wright join Justice Stras.

The statute here, Minn.Stat. 609.375, subd. 1 requires proof that the alleged offender knowingly omitted and failed to provide both care and support to either a spouse or child.  In this case, it was a child.  Both the state and Mr. Nelson – but not everyone on the court – agreed that “care and support” meant two different things.  Mr. Nelson was in arrears on his monetary child support somewhere north of eighty grand.  The state had argued, and both the trial court and the court of appeals agreed, that this failure to pay was sufficient, standing alone, to support Mr. Nelson’s conviction, a view that Justice Lillehaug adopts.  That is, despite the “and” in “care and support” the state need only prove either one or the other.  Mr. Nelson said, no, “and” means “and” so the state has to prove the failure to provide both care and support. 

When Justice Dietzen, dissenting, hauled out his dictionaries he grabbed something by Bryan A. Garner called The Redbook:  A Manual on Legal Style, (2d ed. 2006).  Mr. Garner lists over one hundred “common legal doublets.”  (You have to read this list:  “null and void”; “lewd and lascivious” – you get the idea).  Justice Stras, however, calls out Justice Dietzen on this because “care and support” is not on the Redbook’s list.  Oops.  Including the third edition of The Redbook.  Hah!

With that, Justice Stras is off and running.  The former Professor is in his element.  And, he delights in making things a lot more complicated.  Notice, for instance, that the statute itself contains what looks like not one but two “legal doublets” (The Redbook be damned):  “omitted and failed” and “care and support”.  To figure out what that means the Justice calls in “DeMorgan’s Theorem”.  Justice Stras ends up with three “reasonable” interpretations of the statute, none of which “is most persuasive.”  He throws up his hands at that point and, applying the “rule of lenity” – as he sees it, but not Justice Lillehaug - goes with Mr. Nelson’s interpretation:  het state has to prove failure to provide both care and support.