What Does “Maliciously” Mean, When an Extortion Statute Bans “Maliciously Threaten[ing]”?

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From Tomlinson v. State, decided today by the Florida Supreme Court, in an opinion by Justice John Couriel:

Kevin Tomlinson threatened to ruin the reputation of two fellow real estate brokers unless they paid him. Must the State prove that Tomlinson made this threat with hatred for the complainants in seeking a conviction under Florida’s extortion law? …

In April 2015, Kevin Tomlinson filed a complaint with the Miami Association of Realtors (MAR) alleging that two brokers, Jill Hertzberg and Jill Eber, known in the market as “the Jills,” were preventing other brokers from courting their clients by manipulating data in a listing service that MAR operated. In their response to the complaint, the Jills took responsibility for altering the data. Nonetheless, the grievance process continued.

Tomlinson demanded that the Jills pay $400,000, or else he was “going to ruin” them “by, among other things, ‘call[ing] the Wall Street Journal’ and convincing the Florida Department of Business and Professional Regulation to take away the Jills’ real estate licenses.” “He told [Hertzberg] that her reputation was at risk, and that he did not want her ‘beautiful career to be marred.’ He also mentioned that other brokers were interested in filing similar complaints, but that he had no desire to ‘corral all these people who want to bring down the Jills.'” They agreed to the $400,000 (apparently as part of a police-supported arrangement to gather evidence against him), but he upped the demand to $800,000.

Tomlinson was convicted of extortion under Florida Statutes § 836.05, which at the time provided (emphasis added):

Whoever … maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree ….

The court analyzed the statute thus:

The word “maliciously” is not defined in section 836.05 or chapter 836. The standard jury instruction acknowledges that Florida’s district courts of appeal have adopted different definitions of the word. One district court has read the statute to require proof of ill will, hatred, spite, or an evil intent (what some courts have called “actual malice”). And other district courts have read the statute to require proof that the threat was made intentionally and without any lawful justification (or “legal malice”)….

When, in discerning what a statute requires, we encounter a word with more than one meaning, we look for the original meaning of the statutory text to keep us from overriding the bargain struck in the Legislature and signed by the Governor, that is, the law that governs us…. Here, the contextual clues bearing on the meaning of “maliciously” in section 836.05 affirm the Third District’s insight that the term does not denote a hatred of the complainant. Adjacent language requires the State to prove “intent … to extort money or any pecuniary advantage” or to make a complainant or another person “do any act or refrain from doing any act against his or her will.” That provides a clue about what the word “maliciously” does in the statute: it directs the reader to the meaning of the word that fits most readily with an intent to take pecuniary advantage of, and not necessarily to hate, the complainant—that is, to act “intentionally and without a lawful justification.”

And then there is the history. The legislative bargain that eventually found its way into section 836.05 of our statutes was first struck in 1868…. At the time, “maliciously” had developed a settled legal meaning at English common law, of which we are mindful in interpreting the statute. Early in the eighteenth century, Lord Chief Justice Holt stated that hatred and malice are “distinct passions of the mind.” Malice “is a design formed of doing mischief to another,” so that one who “designs and useth the means to do ill is malicious.” Two opinions from around a century later, influential in early American law, also distinguished between hatred and malice in the legal sense. See R. v. Harvey (1823) (“The legal import of [malice] differs from its acceptation in common conversation. It is not, as in ordinary speech, only an expression of hatred or ill-will to an individual; but means any wicked or mischievous intention of the mind. Thus, in the crime of murder … it is neither necessary … to shew that the prisoner had any enmity to the deceased, nor would proof of absence of ill-will furnish the accused with any defence, when it is proved that the act of killing was intentional, and done without any justifiable or excusable cause.”); Bromage v. Prosser (1825) (“Malice in common acceptation means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse.”). One common law scholar, writing about twenty years after the enactment of our first law of extortion, concluded that “malice” “seldom if ever bears its natural sense (except it may be in some of the rules as to libel).” James Fitzjames Stephen, A History of the Criminal Law of England 120 (1883). This Court, citing English authorities, provided its definition of the term one year before the extortion statute was first enacted, writing that a “wrongful act done intentionally without just cause or excuse, is said to be done maliciously.” [Further historical evidence omitted. -EV]

We cannot say this nineteenth-century understanding of “maliciously” in the context of extortion did not even then coexist with a sense of the word denoting hatred or ill will, as there are of course significant nineteenth-century illustrations of that usage. Indeed, there were legal contexts in which the meaning advocated by Tomlinson was sometimes used—though not in the context of extortion. In Lovett v. State (1892), for instance, this Court approved a jury instruction in a murder case providing in part that an act is “maliciously done when it is done on purpose, and with evil intent.” Yet the instruction also recognized that “malice,” even in that context, “is never understood to denote general malevolence or unkindness of heart, or enmity towards a particular individual, but it signifies, rather, the intent from which flows any unlawful and injurious act, committed without legal justification.”

And in prosecutions for criminal mischief, some courts interpreted “maliciously” to mean ill will or enmity, or to describe intentions of cruelty, hostility, or vengeance toward the complainant. In a roundabout way, these usages of “maliciously” to denote ill will or hatred wind up supporting the Court’s conclusion today: English common law provides some support for that meaning of the word in the context of malicious mischief, but points to another meaning in the context of other crimes, including extortion. {Malicious mischief offenses criminalized damage to private property motivated either by a “spirit of wanton cruelty, or black and diabolical revenge.” William Blackstone, Commentaries on the Laws of England.} …

The Legislature has fiddled with the statute a few times since 1868, but its revisions do not suggest that it altered which meaning of “maliciously” applied in the context of extortion. To the contrary, we find in the continuity more support for our decision today….

Kseniya Smychkouskaya represents the state.

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