Tanner v. Gold, No. 358-6-04 Wncv (Katz, J., Feb. 2 5, 2005)

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STATE OF VERMONT SUPERIOR COURT Washington County, ss.:

TANNER Docket No. 358-6-04 Wncv

v. GOLD

TUDHOPE Docket No. 359-6-04 Wncv

v. GOLD

BARTLETT Docket No. 360-6-04 WnCv

v. GOLD

ENTRY

These three, effectively identical petitions by pri soners for good time credit (Earned Reduction of Term) raise a close que stion of statutory interpretation: Does 28 V.S.A. § 811(c) express au tomatic loss-ofopportunity credit for § 811(d) work camp?

For sure, the statutory sentence includes the term “work” in its2

direction to afford inmates credit for opportunitie s appropriate for them but unavailable due to limitations of the Department. 28 V.S.A. § 811(c). In its argument, the Department does not really deal with the presence of that term or offer a reason why it is included in the st atute, if it does not apply to a situation such as that presented by these cases. Statutory interpretations that render words superfluous are disfavored. In r e South BurlingtonShelburne Highway Project , 174 Vt. 604, 606 (2002).

Nevertheless, other considerations point in the opp osite direction. In setting out the fifteen-days-per-month credit of § 811(d), the Legislature in several ways has sought to separate that credit fro m other parts of the statute. Linguistically, the provision commences with “notwi thstanding,” surely implying either an exception or somehow different s cheme from what precedes it. See Black’s Law Dictionary 1091 (7 th ed. 1999) (defining “notwithstanding” as “[d]espite; in spite of”). Gr aphically, the use of

boldface “ Work camps ” suggests a discrete category, perhaps thereby indicating a different treatment. We are unaware o f such a general style of boldface type in subparagraphs in Vermont’s statuto ry compilation, but note that it does appear in the statute governing prison furloughs, 28 V.S.A. § 808(f) and (g).

Perhaps this last indication segues into the final consideration. Administrative agencies generally are accorded some deference in the interpretation of their respective governing statut es. In re Eastland, Inc. , 151 Vt. 497, 499 (1989); 3 Charles H. Koch, Jr., Admini strative Law and Practice § 11.25, at 126-30. Perhaps originally su ch deference stemmed from a presumption that the agency had the most tim e to study the language or understand its proper context. In contemporary terms, courts would be naive to overlook the reality that Department perso nnel probably hovered over the committee giving birth to the language–ind eed, they probably authored it in the first place. While this reality should not lead courts to surrender the obligation of interpretation to the a gency involved, it supports the deference previously noted. In a situation in which the Department’s3

governing statutes seem to have wandered into their own, unique graphic style, this consideration seems to assume greater w eight.

Taking these several factors into consideration, an d keeping in mind that the ultimate goal is to ascertain the intentio n of the enacting Legislature, Russell v. Armitage , 166 Vt. 392, 403 (1997), we conclude that the Department’s position is the stronger one, although not free from doubt. Summary judgment therefore is entered for defendant . Petitions dismissed.

Dated at Montpelier, Vermont, _____________________ __, 20__.

__________________________ Judge