Tanner v. Gold, No. 358-6-04 Wncv (Katz, J., Feb. 25, 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 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-of-
opportunity credit for § 811(d) work camp?

       For sure, the statutory sentence includes the term “work” in its
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 Burlington-
Shelburne 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




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