Tanner v. Gold, No. 358-6-04 Wncv (Katz, J., Feb. 25, 2005) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted 

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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 prisoners for good time 

credit (Earned Reduction of Term) raise a close question of statutory 

interpretation: Does 28 V.S.A. § 811(c) express automatic loss-ofopportunity credit for § 811(d) work camp? 

For sure, the statutory sentence includes the term “work” in its 
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direction to afford inmates credit for opportunities 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 statute, if it does not apply to 

a situation such as that presented by these cases. Statutory interpretations 

that render words superfluous are disfavored. In re South BurlingtonShelburne Highway Project, 174 Vt. 604, 606 (2002). 

Nevertheless, other considerations point in the opposite direction. In 

setting out the fifteen-days-per-month credit of § 811(d), the Legislature in 

several ways has sought to separate that credit from other parts of the statute. 

Linguistically, the provision commences with “notwithstanding,” surely 

implying either an exception or somehow different scheme from what 

precedes it. See Black’s Law Dictionary 1091 (7th ed. 1999) (defining 

“notwithstanding” as “[d]espite; in spite of”). Graphically, the use of 

boldface “Work camps” suggests a discrete category, perhaps thereby 

indicating a different treatment. We are unaware of such a general style of 

boldface type in subparagraphs in Vermont’s statutory 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 statutes. In re Eastland, Inc., 151 

Vt. 497, 499 (1989); 3 Charles H. Koch, Jr., Administrative Law and 

Practice § 11.25, at 126-30. Perhaps originally such deference stemmed 

from a presumption that the agency had the most time to study the language 

or understand its proper context. In contemporary terms, courts would be 

naive to overlook the reality that Department personnel probably hovered 

over the committee giving birth to the language–indeed, they probably 

authored it in the first place. While this reality should not lead courts to 

surrender the obligation of interpretation to the agency involved, it supports 

the deference previously noted. In a situation in which the Department’s 
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governing statutes seem to have wandered into their own, unique graphic 

style, this consideration seems to assume greater weight. 

Taking these several factors into consideration, and keeping in mind 

that the ultimate goal is to ascertain the intention 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