Dept. of Corrections v. Human Rights Commission (2004-503)

2006 VT 134

[Filed 29-Dec-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 134

                                No. 2004-503


  Department of Corrections                      Supreme Court

                                                 On Appeal from
       v.                                        Washington Superior Court


  Human Rights Commission                        October Term, 2005


  Alan W. Cook, J.

  William H. Sorrell, Attorney General, Montpelier, and Marie J. Salem and
    Kate Duffy, Assistant Attorneys General, Waterbury, for
    Petitioner-Appellant.

  Robert Appel, Executive Director, Montpelier, for Respondent-Appellee.

  John Boldosser IV and Barbara Prine, Vermont Legal Aid, Burlington, for
    Intervenor-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

        
       ¶  1.  JOHNSON, J.   The issue in this appeal is whether the Vermont
  Fair Housing and Public Accommodations Act, 9 V.S.A. §§ 4500-4507, applies
  to state correctional facilities, thereby giving the Human Rights
  Commission jurisdiction to investigate complaints filed by state prisoners
  alleging violations of the Act.  Based upon its determination that the Act
  covers state prisons, the superior court denied the Department of
  Corrections' motion to quash a subpoena served by the Commission in
  conjunction with a prisoner's discrimination claim.  The Department
  contends that the court erred insofar as prisons do not offer services or
  benefits to the "general public" and thus are not "places of public
  accommodation" subject to the Commission's investigatory powers.  We
  conclude that the Legislature intended to make all governmental entities,
  including state prisons, subject to the Act.  Accordingly, we affirm the
  superior court's decision.

       ¶  2.  On appeal, the Department relies primarily on a single phrase
  in one statutory definition to support its argument that state prisons are
  not covered by the public accommodations statute.  Nothing in the language
  or history of the statute, however, indicates that the Legislature intended
  the law to cover some governmental entities, but not others, depending on
  whether, or how directly, they offer services or benefits to the general
  public.  The phrase "general public" within the statutory definition of a
  "place of public accommodation" is a holdover from the original 1957
  statute, which, like similar laws in other jurisdictions, was aimed at
  assuring that private establishments catering to members of the general
  public did not discriminate on the basis of race or other specified
  criteria.  Hence, a "place of public accommodation" was defined as an
  establishment that provided benefits or services to the general public. 
  The critical inquiry, then, in determining which private entities were
  covered by the law was whether a particular establishment served the
  general public.  That question makes little sense, however, when applied to
  public or governmental entities, which are created for the very purpose of
  serving the general public.
   
       ¶  3.  The most reasonable interpretation of the statute,
  particularly considering that it must be liberally construed to effectuate
  its remedial purpose, is that the Legislature intended to make all
  governmental entities, in addition to all private entities offering
  services or benefits to the general public, subject to the Act's
  anti-discrimination provisions.  There is support for this interpretation
  not only in the statutory language, but also in the history of the
  statutory amendments and the legislative policy underlying the Act.  In
  particular, the legislative history of the 1992 amendment unequivocally
  confirms that the Act was intended to apply to all governmental entities
  and to provide a local enforcement mechanism for claims actionable  under
  the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12300, which
  applies to all public entities, including state prisons.

       ¶  4.  The Human Rights Commission has jurisdiction to investigate and
  enforce complaints of unlawful discrimination in public accommodations.  9
  V.S.A. § 4552(b).  Pertinent to this case, it is generally unlawful for any
  place of public accommodation to discriminate against an individual with a
  disability.  Id. § 4502(c).  The Commission may accept complaints that
  state a prima facie case of discrimination, and must dismiss those that do
  not.  Id. § 4554(a)-(b).  In conducting an investigation, the Commission
  can issue subpoenas with respect to complaints filed under § 4554 where
  there is reasonable cause to believe that the materials or testimony
  requested are material to the complaint.  Id. § 4553(a)(5).

       ¶  5.   In November 2003, the Commission served a subpoena on the
  Department in connection with a discrimination charge filed on behalf of a
  state prisoner.  The prisoner complained that the Department's correctional
  facility discriminated against him on the basis of his disability.  The
  Department moved the Commission to quash the subpoena under § 4553(a)(5),
  asserting that the complaint failed to state a prima facie case of
  discrimination because a correctional facility was not a "place of public
  accommodation" under the Act.  The Commission denied the Department's
  request in December 2003.
   
       ¶  6.  The Department then moved to quash the subpoena in superior
  court.  In September 2004, following a hearing, the court denied the
  Department's motion and granted the Commission's motion to enforce the
  subpoena.  Relying on Pennsylvania Department of Corrections v. Yeskey, 524
  U.S. 206 (1998), the court concluded that Vermont's correctional facilities
  plainly offered "services, facilities, goods, privileges, advantages,
  benefits or accommodations" to prisoners and thus was a "place of public
  accommodation."  See 9 V.S.A.§ 4501(1).  According to the court,
  irrespective of whether the physical structures of government buildings,
  including prisons, are open to the public, state prisons are essentially
  public places open to any member of the general public unfortunate enough
  to meet the criteria for obtaining their services.  The court granted the
  Department's request for a stay, and this appeal followed.

       ¶  7.  On appeal, the Department argues that the Human Rights
  Commission did not have jurisdiction to issue its subpoena in this case
  because correctional facilities do not serve or benefit the general public
  and thus are not "places of public accommodation" under the Act.  This is a
  case of statutory interpretation in which our review of the trial court's
  decision is nondeferential and plenary.  Human Rights Comm'n v. Benevolent
  & Protective Order of Elks, 2003 VT 104, ¶ 13, 176 Vt. 125, 839 A.2d 576. 
  "Our paramount goal, when interpreting a statute, is to effectuate the
  intent of the Legislature."  Id.  As we stated in Order of Elks, a recent
  case interpreting the Act, we effectuate legislative intent by looking "to
  the statute's language and any legislative history, as well as the
  legislative policy the statute was designed to implement."  Id.  We also
  stressed in Order of Elks that, as a remedial statute, the Act "must be
  liberally construed in order to 'suppress the evil and advance the remedy'
  intended by the Legislature."  Id. (quoting 3 N. Singer, Statutes and
  Statutory Construction § 60:1, at 183 (6th ed. 2001)).
   
       ¶  8.  To interpret the Legislature's intent, we begin by examining
  the statutory language.  Russell v. Armitage, 166 Vt. 392, 403, 697 A.2d
  630, 637 (1997).  Our public accommodations statute forbids owners or
  operators of places of public accommodation from discriminating on the
  basis of specified criteria.  9 V.S.A. § 4502.  "Public Accommodation" is
  defined as "an individual, organization, governmental or other entity that
  owns, leases, leases to or operates a place of public accommodation."  Id.
  § 4501(8).  "Place of public accommodation," in turn, is defined as "any
  school, restaurant, store, establishment or other facility at which
  services, facilities, goods, privileges, advantages, benefits or
  accommodations are offered to the general public."  Id. § 4501(1).  The
  interpretive problem arises because the definition of "place of public
  accommodation" retains the term "general public," which historically was
  used to determine which private entities were subject to the law, while the
  relatively recent definition of "public accommodation" does not necessarily
  restrict governmental entities to the criteria set forth in the definition
  of "place of public accommodation."

       ¶  9.  The statute also has a legislative intent section that was
  added in 1992 to ensure that the Public Accommodations Act would be applied
  consistently with the then recently enacted federal Americans with
  Disabilities Act, 42 U.S.C. §§ 12101-12300.  That section states:

    (a) The provisions of this chapter establishing legal standards,
    duties  and requirements with respect to persons with disabilities
    in places of public accommodation as defined herein, except those
    provisions relating to remedies, are intended to implement and to
    be construed so as to be consistent with the Americans with
    Disabilities Act, 42 U.S.C. § 12101 et seq. and rules adopted
    thereunder, and are not intended to impose additional or higher
    standards, duties or requirements than that act.

    (b) Subsections 4502(b) and (c) of Title 9 shall not be construed
    to create or impose on governmental entities additional or higher
    standards, duties, or requirements than that imposed by Title II
    of the Americans with Disabilities Act.

  9 V.S.A. § 4500.
   
       ¶  10.  It is undisputed that prisoners may pursue discrimination
  claims under Title II of the ADA, 42 U.S.C. §§ 12131-12134.  See, e.g.,
  Charbonneau v. Gorczyk, 2003 VT 105, ¶ 8, 176 Vt. 140, 838 A.2d 117
  (reviewing state prisoner's discrimination claim against commissioner of
  Department of Corrections, and noting that the ADA "prohibits state
  agencies like the DOC from excluding an individual from a DOC program
  because of the individual's disability").  Indeed, in a unanimous opinion,
  the United States Supreme Court has held that Title II of the ADA
  "unmistakably includes State prisons and prisoners within its coverage." 
  Yeskey, 524 U.S. at 209.  Hence, the real issue in this case is whether
  prisoners can use the local enforcement provisions of the Public
  Accommodations Act to raise claims actionable under the ADA.  This point is
  significant because, as discussed below, the legislative history reveals
  that the 1992 amendment was intended not only to make it explicit that
  government entities are covered by the Public Accommodations Act, but also
  to allow persons with claims under the ADA to bring those claims within the
  local enforcement scheme provided in the Act.

       ¶  11.  The ADA has two distinct subchapters that deal with, on the
  one hand,  public entities, and on the other, private entities serving the
  public.  Subchapter II, entitled "Public Services," prohibits a "public
  entity," including any agency or department of a local or state government,
  42 U.S.C. § 12131, from denying benefits or services to any qualified
  individual.  Id. § 12132.  Subchapter III, entitled "Public Accommodations
  and Services Operated by Private Entities," prohibits private entities that
  are considered places of public accommodation from discriminating on the
  basis of disability with respect to the services or benefits they offer. 
  Id. §§ 12181(7), 12182.  Thus, the ADA covers all public (i.e.
  governmental) entities and all private entities serving the public.
   
       ¶  12.  Although the 1992 amendment did not adopt the bifurcated
  format contained in the ADA, the legislative history demonstrates that the
  amendment was intended to: (1) make it explicit that the public
  accommodations law applies to governmental entities; (2) integrate the
  duties and requirements of the ADA into the public accommodations law so
  that covered entities would not be subjected to varying standards under
  federal and state law; and (3) create a local enforcement mechanism under
  the public accommodations law for complaints otherwise actionable under the
  ADA.  With respect to the first objective, the Legislature added within the
  definition section of the statute the term "public accommodation," which it
  defined as "an individual, organization, governmental or other entity that
  owns, leases, leases to or operates a place of public accommodation." 
  1991, No. 243 (Adj. Sess.), § 1 (emphasis added).  The Legislature also
  expanded the definition of "place of public accommodation," but retained
  the term "general public."  Id.  (amending definition of "place of public
  accommodation" from "any school, restaurant, store or other establishment
  which caters or offers its services or facilities or goods to the general
  public" to "any school, restaurant, store, establishment or other facility
  at which services, facilities, goods, privileges, advantages, benefits, or
  accommodations are offered to the general public").  With respect to the
  second objective, the Legislature added the legislative intent provision
  set forth above.  Id. § 5.
   
       ¶  13.  Thus, the critical statutory language concerning the present
  dispute-including the definition of "public accommodation" that referred
  for the first time to governmental entities-was inserted as part of the
  1992 amendment that came about, in large part, as a response to the
  enactment of the ADA.  The chief proponent of the bill (Senate Bill 403)
  was the Vermont Coalition for Disability Rights (VCDR), with the full
  support of, and input from, the Human Rights Commission.  At hearings
  before both the Senate Judiciary and General Housing and Military Affairs
  Committees, a representative of the VCDR and the executive director of the
  Commission provided extensive testimony on the meaning and purpose of the
  amendments.  Much of the relevant testimony took place at a March 5, 1992
  hearing before the Senate General Housing and Military Affairs Committee.

       ¶  14.  Referring to the newly inserted definition of public
  accommodation, which expressly included governmental entities, the VCDR
  representative stated that the words governmental entity were included in
  the definition at the suggestion of the Commission to make it explicit that
  the public accommodations law applied to government agencies.  She told the
  committee that VCDR was not "asking the public entities to do anything that
  they are not already required to do under the ADA."  She further stated
  that one of the main purposes of the bill was to put the ADA into Vermont
  law so that the Commission would be "available and able to investigate
  complaints of discrimination by public accommodations."  In that way, "we
  would have a local, fairly quick way of resolving complaints," which would
  benefit both sides. 

       ¶  15.  The executive director of the Commission reiterated these
  points in her testimony.  In addition to stressing the need for local
  enforcement so that parties would not be relegated to a vague federal
  enforcement scheme, she stated as follows:

    The other thing that this bill does is it makes it clear that
    governmental entities are considered a place of public
    accommodation.  That also has been unclear in the current law.  We
    have been interpreting the current law to include government
    entities because the definition of a place of public accommodation
    in current law is very broad. . . . Many other states specifically
    include governmental entities as a place of public accommodation. 
    And we think that our general definition would cover it, but this
    bill would make that clearer as well.

  When one of the committee members asked her if the new definition of public
  accommodation was in the ADA, the executive director responded by
  explaining that the ADA had separate subchapters dealing with public
  entities (Subchapter II) and with private places of public accommodation
  (Subchapter III), but that the term "public accommodation" was used only in
  Subchapter III.  She stated that rather than follow this more complicated
  format, they had "telescoped" the provisions into one bill.

       ¶  16.  Several other witnesses from all sides expressed support for
  the amendment and recognized its main purposes of clarifying the standards
  and obligations of the law and providing a local enforcement mechanism for
  the ADA.  A representative of the Department of Aging and Disabilities
  acknowledged that the bill would ensure enforcement of public access at the
  local level and stated that "[a]dding state government to the provisions of
  the public accommodations bill will not be an issue, in my opinion, that
  will present an undue burden [on] . . . state government."  He opined that
  the amendment would benefit all concerned, including businesses and state
  government, by allowing the parties to work out complaints promptly and
  locally through the Commission.  Witnesses representing business interests
  were also supportive of the bill, their main concern being that they would
  not be subject to differing state and federal standards.
   
       ¶  17.  A representative of the Vermont League of Cities and Towns
  (VLCT) also expressed support for the bill, but wanted the public
  accommodations law to expressly state that government entities would be
  subject to standards and obligations set forth in Subchapter II of the ADA,
  as opposed to Subchapter III dealing with private entities.  When one
  committee member asked her what was confusing about the bill as written,
  she stated that "you are throwing everybody into the same pot."  Her
  concerns resulted in adding an apparently redundant second subsection to
  the legislative intent provision included in the bill.  The first
  subsection of that provision, upon which the dissent relies, states that
  the provisions establishing standards, duties, and requirements with
  respect to persons with disabilities "in places of public accommodation as
  defined herein" are intended to implement and be construed as consistent
  with the ADA. 9 V.S.A. § 4500(a).  According to the VLCT representative,
  however, the quoted phrase was put there to make it clear that the
  legislative intent section applied only to the public accommodations
  provisions and not the fair housing provisions contained in the same
  chapter.  Thus, the phrase was not intended to restrict the scope of the
  public accommodations law, as the dissent suggests.

       ¶  18.  The testimony of these witnesses, and their discussions with
  committee members, demonstrate that the 1992 amendment to the Public
  Accommodations Act was intended to make it explicit that governmental
  entities are places of public accommodation, consistent with the ADA. 
  Rather than adopt the bifurcated structure of the ADA in which all public
  entities are subject to the anti-discrimination law under Subchapter II,
  and other places of public accommodations (i.e. private enterprises that
  cater to the public) are subject to the law under Subchapter III, the
  Legislature simply incorporated governmental entities into a newly added
  definition of "public accommodation" with the expectation that the law
  would apply to them in general.
   
       ¶  19.   "We have frequently relied upon legislative history where
  the meaning of the statute cannot be determined from the words alone."  In
  re Dep't of Bldgs. & Gen. Servs., 2003 VT 92, ¶ 14, 176 Vt. 41, 838 A.2d
  78.  Although the remarks of a single witness at a committee hearing are
  generally given little weight in determining legislative intent, id., we
  have relied upon committee testimony and legislators' discussions when they
  convincingly reveal the intent underlying a statute.  See, e.g., In re
  Hinsdale Farm, 2004 VT 72, ¶ 17, 177 Vt. 115, 858 A.2d 249 (citing
  committee testimony that convincingly illustrated legislative intent). 
  Here, it is appropriate to rely on the legislative history to help us
  understand the legislative intent underlying the Public Accommodations Act,
  as it has been amended over the years..

       ¶  20.  Construing the Public Accommodations Act to apply to all
  governmental entities also makes sense in light of the underlying policy
  and evolution of the law.  As noted, Vermont's statute dates back to 1957. 
  Order of Elks, 2003 VT 104, ¶ 15.  As with other state statutes, the
  primary target of Vermont's statute was private businesses that catered to
  the general public. (FN1)  See Lerman & Sanderson, supra note 1, at 218
  ("Proscription of discrimination in public accommodations is premised on
  the notion that many privately-owned establishments are to some extent
  public.").  The statute, which consisted of three sentences, prohibited
  "[a]n owner or operator of a place of public accommodation" from
  discriminating based on race, creed, color or national origin by denying
  any person "any of the accommodations, advantages, facilities and
  privileges of such place of public accommodation."  1957, No. 109, § 1.  A
  place of public accommodation was defined as "any establishment which
  caters or offers its services or facilities or goods to the general
  public."  Id.
                           
       ¶  21.  In the ensuing decades, the Legislature enacted several
  amendments that, as with public accommodation statutes in other states,
  "broadened [the statute's] scope with regard to the groups protected from
  discrimination under the statute and the establishments or facilities
  covered by definition."  Order of Elks, 2003 VT 104, ¶ 15; see Roberts v.
  U.S. Jaycees, 468 U.S. 609, 624 (1984) (noting that many states have
  "progressively broadened the scope of [their] public accommodations law . .
  . both with respect to the number and type of covered facilities and with
  respect to the groups against whom discrimination is forbidden").  As
  discussed above, the statute was amended in 1992, in part, to clarify that
  government entities are covered by the statute.  Retention of the term
  "general public," which had been part of the statutory language since the
  law's inception in 1957, does not suggest that the Legislature intended to
  distinguish between government entities depending on the degree of contact
  with the general public. 


       ¶  22.  Nevertheless, like the Department, the dissent relies almost
  exclusively on dictionary definitions of the words "general" and "public"
  in concluding that prisons do not offer benefits or services to the general
  public and thus are not subject to the anti-discrimination provisions of
  our public accommodations law. (FN2)  For the reasons set forth above, we
  decline to construe the statute so narrowly.  While we are generally
  restricted to the commonly understood meaning of "absolutely clear and
  unambiguous" statutory language, "if any question remains as to the intent
  underlying the statute, we also look at 'the legislative history and
  circumstances surrounding its enactment, and the legislative policy it was
  designed to implement.' "  In re McIntyre Fuels, Inc., 2003 VT 59, ¶ 7, 175
  Vt. 613, 833 A.2d 829 (mem.) (quoting Perry v. Med. Practice Bd., 169 Vt.
  399, 406, 737 A.2d 900, 905 (1999)); see Town of Killington v. State, 172
  Vt. 182, 189, 776 A.2d 395, 401 (2001) ("When the plain meaning of
  statutory language appears to undermine the purpose of the statute, we are
  not confined to a literal interpretation, but rather must look to the broad
  subject matter of the statute, its effects and consequences, and the
  purpose and spirit of the law to determine legislative intent.").
   
       ¶  23.  In light of the evolving scope of public accommodations law,
  the complicated history of our statute, and its arguably redundant
  provisions, the statutory language is not so clear that we can rely
  exclusively on the commonly understood meaning of two isolated words to
  determine the Legislature's intent.  Cf. Dep't of Bldgs. & Gen. Servs.,
  2003 VT 92, ¶ 13 (refusing to join the environmental court in concluding
  that the meaning of the statutory language was so plain that no aids of
  statutory construction should be employed); Town of Killington, 172 Vt. at
  189-90, 776 A.2d at 401 (declining to accept the most commonly understood
  meaning of the general term "municipal budget" in the context of the
  specific statute, but instead liberally construing the statute to
  effectuate its remedial purpose and the intent of the Legislature).  As
  noted above, the definition of a "place of public accommodation" is more
  useful for determining jurisdiction over private entities than it is for
  determining which governmental entities are public.  Government is public.

       ¶  24.  The plain-meaning rule cannot be used to thwart judicial
  inquiry into the legislative intent behind statutory language that may
  initially appear plain upon a superficial examination.  2A N. Singer,
  Sutherland Statutory Construction § 48.01, at 302 (5th ed. 1992). 
  Moreover, we would not be liberally construing the public accommodations
  law to implement its remedial purpose by holding that the retention of the
  phrase "general public" from the original statute demonstrates a
  legislative intent to distinguish between public entities that do and do
  not serve the general public.  See Lerman & Sanderson, supra note 1, at
  242-43 (noting that statutes such as those in New Mexico, Oregon, and
  Vermont that use broad definitions of places of public accommodation "are
  assumed to cover places offering food and drink, lodgings and
  entertainment, as well as retail establishments and state facilities"
  (emphasis added)).
   
       ¶  25.  In short, the general scheme of the public accommodations
  statute, viewed in light of its underlying purpose and history,
  demonstrates that the Legislature intended to make all governmental
  entities subject to the public accommodations law.  The dissent asserts
  that "there is nothing unclear or unreasonable about the Legislature
  distinguishing state prisons from other governmental entities."  Post, ¶
  33.  That is a debatable, but ultimately irrelevant, point, given that the
  Legislature has not exempted state prisons-or any other public entity for
  that matter-from a law that was intended to apply to governmental entities
  in general.

       Affirmed.


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                 Dissenting

       ¶  26.  BURGESS, J., dissenting.  Constrained to read and apply what
  the Legislature enacted, rather than what the majority believes the
  Legislature meant to say, I respectfully dissent.  We might frequently
  perceive an arguably better policy or reason to extend legislation beyond
  what is actually declared by the statute.  It is not the function of this
  Court, however, to correct or change a statute that can otherwise
  effectively achieve a purpose plainly and unambiguously written by the
  Legislature. 

       ¶  27.  We are asked to decide if a state correctional facility is a
  "place of public accommodation" under the Vermont Fair Housing and Public
  Accommodations Act, 9 V.S.A. §§ 4500-4507, and, consequently, whether the
  Human Rights Commission has jurisdiction to investigate prisoner complaints
  of disability discrimination.(FN3)  The statute defines a "place of public
  accommodation" to mean: 

    any school, restaurant, store, establishment or other facility at
    which services, facilities, goods, privileges, advantages,
    benefits or accommodations are offered to the general public.

  9 V.S.A. § 4501(1).  Prisons do not offer "services, facilities . . . or
  accommodations . . . to the general public," and so are not places of
  public accommodation as defined by the statute.

       ¶  28.  In interpreting a statute, our goal is to implement
  legislative intent.  Herrick v. Town of Marlboro, 173 Vt. 170, 173, 789
  A.2d 915, 917 (2001).  "The definitive source of legislative intent is the
  statutory language, by which we are bound unless it is uncertain or
  unclear."  In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176 Vt. 584, 845
  A.2d 332.  We presume that the Legislature intended the plain ordinary
  meaning of the language that it used, Brennan v. Town of Colchester, 169
  Vt. 175, 177, 730 A.2d 601, 603 (1999), and when the meaning of a statute
  is plain, it must be enforced according to its terms.  In re Middlebury
  Coll. Sales and Use Tax, 137 Vt. 28, 31, 400 A.2d 965, 967 (1979). 
  Remedial legislation, such as the 1992 amendment, should be liberally
  construed, Human Rights Comm'n v. Benevolent and Protective Order of Elks,
  2003 VT 104, ¶ 13, 176 Vt. 125, 839 A.2d 576, but "liberal construction
  does not allow us to stretch the language beyond legislative intent." 
  Elkins v. Microsoft Corp., 174 Vt. 328, 331, 817 A.2d 9, 13 (2002). 
   
       ¶  29.  Applying the language used, the Act is unambiguous.  While
  prisons may provide services and accommodations to prisoners, prisoners are
  not "the general public" as that term is commonly understood.  Black's Law
  Dictionary defines "general" as relating "to the whole kind, class, or
  order" and "open or available to all, as opposed to select."  Black's Law
  Dictionary 614 (5th ed. 1979); see also Webster's Ninth New Collegiate
  Dictionary 510 (1985) (defining "general" as  "involving, applicable to, or
  affecting the whole").  "Public" is defined as "[t]he whole body politic,
  or the aggregate of the citizens of a state, nation, or municipality." 
  Black's Law Dictionary 1104 (5th ed. 1979); see also Webster's Ninth New
  Collegiate Dictionary 952 (1985) (defining "public" as "the people as a
  whole:  populace").  The plain and ordinary meaning of the phrase "the
  general public," in both common and legal parlance, is the whole community
  at large. (FN4) 
   
       ¶  30.   I am not persuaded, as is the majority, that the
  explicitly-defining phrase "to the general public" is a vestigial
  anachronism, a sort of statutory coccyx, that the Legislature intended to
  obviate through its 1992 expansion of "public accommodation" to include
  governmental facilities.  We should presume, instead, that the Legislature
  intended to keep the preexisting definition in place as, indeed, it did
  here.  See Robes v. Town of Hartford, 161 Vt. 187, 193, 636 A.2d 342, 347
  (1993) (in considering statutory language, "we presume that the
  [L]egislature chose its words advisedly").  We should also presume that the
  Legislature appreciated the effect of its statutory definition on the newer
  legislation.  Scott v. St. Johnsbury Acad., 86 Vt. 172, 175, 84 A. 567, 568
  (1912) ("It is to be presumed that in enacting [an amendment] the
  Legislature acted with full knowledge of the prior legislation on the
  subject . . . .").  While these canons of statutory construction need not
  be slavishly followed to an ineffective or unreasonable result, see Audette
  v. Greer, 134 Vt. 300, 302, 360 A.2d 66, 68 (1976) (observing that "it is
  essential that the [statutory] construction not be such that will render
  the act ineffective or lead to irrational consequences"), no such result
  obtains here, since all state governmental operations that do offer
  services to the general public are subject to the coverage plainly intended
  by the 1992 amendment. 

       ¶  31.  The majority correctly points out that in the 1992 amendments
  the Legislature said that the Act's provisions concerning "legal standards,
  duties and requirements" were to be construed consistently with the ADA. 
  Just as explicitly, however, the same declaration of "legislative intent"
  specifies that the Act is to apply to "places of public accommodation as
  defined herein," 9 V.S.A. § 4500(a) (emphasis added), rather than as
  defined by the ADA.  That the Legislature intended its definition of
  "public accommodation,"and not that set forth in the ADA, to govern this
  particular element is clear from its revision of that very definition as
  part of the same 1992 amendment, which nevertheless maintained the
  statute's reach to facilities open to or serving "the general public."
  1991, No. 243 (Adj. Sess.), § 1. (FN5)
    
       ¶  32.  The majority's reference to Title II and Title III of the
  Americans with Disabilities Act shows only that 9 V.S.A. § 4501(1) defines
  "public accommodation" more narrowly than "public entity" in the ADA.  Had
  the Legislature intended the Act to apply to all "public entities," as
  under Title II of the ADA, it could have said so.  The Legislature could
  have adopted the definition of "public accommodation" found in Title III of
  the ADA, 42 U.S.C. § 12181(7), but it did not do so. 

       ¶  33.  There is nothing unclear or unreasonable about the Legislature
  distinguishing state prisons from other governmental entities.  State
  prisons are, in fact, quite different from many other state governmental
  enterprises. (FN6)  Unlike departments dealing with commercial regulation,
  motor vehicle registration, public assistance, revenue collection,
  licensing and the like, it is commonly understood that state correctional
  facilities, while public buildings, are neither open nor offer services, to
  the general public. (FN7)  It is not irrational for the Legislature to
  obligate both public and private entities to respond to the Commission's
  subpoena power when open to, and serving, the general public.  Nor is it
  irrational to exclude prisons from Commission inquiry when prison
  operations, prison policies and prisoners' rights are already subject to
  frequent, if not constant, scrutiny by the Legislature, the Defender
  General's Office, see, e.g., Charbonneau, 2003 VT 105 (Prisoner's Rights
  Office represented inmate in ADA claim against the Department of
  Corrections commissioner), and the courts. 
                                          
       ¶  34.  Equating the term "public accommodation" as defined in 9
  V.S.A. § 4501(1) with "public entity" as defined in Title II of the ADA and
  applied in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206,
  209 (1998), is convenient for the majority's theory, but contrary to the
  expressed intent of the Legislature.  "Great care should be exercised by
  the court not to expand proper construction of a statute into judicial
  legislation."  Harris v. Sherman, 167 Vt. 613, 614, 708 A.2d 1348, 1350
  (1998) (mem.) (quotations and brackets omitted).  That the statute could
  have been edited differently to express a different intent does not render
  the statute unclear or ambiguous.  "[L]egislative intent is to be
  ascertained from the act itself, which is presumed to be in accordance with
  the ordinary meaning of the statutory language," and "where the statutory
  language is clear and unambiguous in its meaning, as in the present case,
  we will look no further in an effort to determine a contrary legislative
  intent."  Cavanaugh v. Abbott Labs., 145 Vt. 516, 530, 496 A.2d 153, 163
  (1985) (quotations omitted); see also In re S. Burlington-Shelburne Highway
  Project, 174 Vt. 604, 605, 817 A.2d 49, 51 (2002) (mem.) ("If the statute
  is unambiguous and the words have plain meaning, we accept and enforce that
  plain meaning as the intent of the Legislature, and our inquiry proceeds no
  further.").

       ¶  35.  Instead, the majority looks to testimony in committee hearings
  to promote its broader construction.  This excursion into "legislative
  history," so called, is unnecessary and not particularly reliable.  No
  ambiguity compels us to look behind the language of the enactment.  In any
  event, committee minutes of statements by partisans, such as the executive
  director for the appellee, for instance, should be a last resort, rather
  than primary source, for statutory construction.  Where comments of
  individual legislators are of "little weight" in determining legislative
  intent, State v. Madison, 163 Vt. 360, 373, 658 A.2d 536, 545 (1995), the
  views of lobbyists and advocates must weigh less still, lest one or a few
  purported spokespersons be relied upon, as here, to revise, add or erase a
  word or a phrase on behalf of the entire Legislature. 
   
       ¶  36.  The statute as written does not apply to state correctional
  facilities.  The Commission lacked jurisdiction to issue a subpoena to the
  Department.  The trial court's statutory construction to the contrary, and
  its denial of the Department's motion to quash, should be reversed.  I am
  authorized to state that Chief Justice Reiber joins in this dissent.  



                                      _______________________________________
                                      Associate Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  Our Public Accommodations Act is a descendent of laws enacted by other
  jurisdictions beginning in the second half of the nineteenth century to
  bolster the common law precluding innkeepers and common carriers from
  refusing to serve any member of the general public.  See Hurley v.
  Irish-Am. Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557,
  571 (1995) (describing the common law under which innkeepers and others who
  served the public were prohibited from refusing, without good reason, to
  serve customers).  See generally L. Lerman & A. Sanderson, Discrimination
  in Access to Public Places: A Survey of State and Federal Public
  Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 218, 238-40, 242
  (1978) (discussing the history of state public accommodations statutes and
  noting that early statutes were considered restatements of the obligation
  of innkeepers and common carriers to admit all travelers); J. Singer, No
  Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L.
  Rev. 1283, 1303-13, 1374 (1996) (discussing the scope of early public
  accommodations common law and listing state statutory enactments). 
  Innkeepers and common carriers were considered to be "a sort of public
  servants," Hurley, 515 U.S. at 571 (quoting Rex v. Ivens, 7 Car. & P. 213,
  219, 173 Eng. Rep. 94, 96 (N.P. 1835)), because they engage in "public
  employment" or "a trade which is for the public good."  See Singer, supra,
  at 1305-06, 1312-13, 1327-30.

FN2.  Even assuming that the Legislature did intend somehow to distinguish
  between governmental entities that do and do not serve the general public,
  one could make a strong argument that prisons should be considered an
  institution that serves the general public.  As the United States Supreme
  Court acknowledged in a unanimous opinion construing the ADA, "[s]tate
  prisons fall squarely within the statutory definition of 'public entity,' "
  and they plainly provide benefits and services to prisoners.  Yeskey, 524
  U.S. at 210.  Prisoners are members of the general public, and any member
  of the general public who commits a crime may be incarcerated and subjected
  to the benefits and services of the prison system.  State prisons, like
  many hospitals or even schools, are places where people do not necessarily
  want to go, but any member of the public meeting certain criteria may be
  "invited"-and is entitled-to participate in their programs and receive
  their benefits.  See Chisolm v. Manimon, 97 F. Supp. 2d 615, 621-22 (D.N.J.
  2000) (finding jails to be analogous to hospitals with respect to the state
  public accommodations law and predicting that the New Jersey Supreme Court
  would find jails and prisons to be places of public accommodation); cf.
  Neal v Mich. Dep't of Corr., 592 N.W.2d 370, 373-74 (Mich. Ct. App. 1998)
  (holding that state correctional facilities are places of "public service"
  subject to the state civil rights act).  But see Skaff v. W. Va. Human
  Rights Comm'n, 444 S.E.2d 39, 41-42 (W. Va. 1994) (holding that penal
  institutions are not places of public accommodation under state law because
  incarcerated individuals are not members of the general public).

       Moreover, apart from the direct benefits and services to prisoners,
  state prisons benefit and serve the general public by protecting members of
  the general public from dangerous individuals.  State prisons do this both
  by physically incarcerating and by rehabilitating those individuals.  As
  stated in 28 V.S.A. § 1(a), the purpose of the Department of Corrections is
  to administer a program "designed to protect persons . . . against
  offenders . . . and to render treatment to offenders with the goal of
  achieving their successful return and participation as citizens of the
  state and community, to foster their human dignity and to preserve the
  human resources of the community."  The Department is required to develop a
  program that, among other things, "will establish as its primary objective
  the disciplined preparation of offenders for their responsible roles in the
  open community."  Id. § 1(b).  To achieve these goals, the department is
  directed to utilize, among other things, "the increased participation of
  the citizens of the state."  Id. § 1(c).  It would be difficult to conceive
  of purposes better illustrating that prisons are governmental entities
  serving and providing benefits to the general public.

FN3.  No one disputes that prisoners can pursue discrimination claims under
  Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134
  (2006).  See, e.g., Charbonneau v. Gorczyk, 2003 VT 105, ¶ 8, 176 Vt.
  140, 838 A.2d 117 (acknowledging that prisoner's disability discrimination
  complaint against Commissioner of Corrections was governed by Title II).

FN4.  Individuals or a group of persons incarcerated in a state jail
  facility, although taken from the population at large due to their
  distinguishing behavioral characteristics, are not "the general public" in
  the ordinary sense of those words.  This is not an academic result based on
  dictionary definitions, as suggested by the majority, but is reality.  The
  Legislature elsewhere acknowledges this reality by noting that most
  institutionalized offenders "ultimately return to the community" and by
  directing the Department to prepare inmates "for their responsible roles in
  the open community." 28 V.S.A. § 1(b).

FN5.  If, as contended by the majority, this expression was inadvertent, the
  Legislature may always revisit and revise its legislation.

FN6.  Vermont would not have been unique in making this distinction. 
  Construing a comparable statute, the West Virginia Supreme Court of Appeals
  similarly concluded that state prisons are not "places of public
  accommodations" for prisoners so that prisoner claims of discrimination did
  not fall within the jurisdiction of the state Human Rights Commission. 
  Skaff v. W. Va. Human Rights Comm'n, 444 S.E.2d 39, 42 (W. Va. 1994).  The
  court found it apparent that prisoners were not "members of the general
  public."  Id. at 41.  In Blizzard v. Floyd, 613 A.2d 619, 620-21 (Pa.
  Commw. Ct. 1992), the court considered the statutory definition of "public
  accommodation," defined in relevant part, as "any accommodation, resort or
  amusement which is open to, accepts or solicits the patronage of the
  general public," and concluded that state correctional facilities were not
  public accommodations because they did not "accept or solicit the patronage
  of the general public." 

FN7.  There may, however, be parts of facilities, such as parking lots,
  lobbies and visiting rooms, that fall within the definition of "public
  accommodation" because they are actually open to, and do serve, the general
  public.


