In Re: Ladd, No. S1510-02 CnC (Katz, J., Aug. 31, 2004)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]




STATE OF VERMONT
Chittenden County, ss.:




IN RE LADD




                                    ENTRY

       Petitioner challenges his classification under the offender
reintegration program. 28 V.S.A. §§ 721–726. Specifically, petitioner
argues that his crime, gross negligent operation of a motor vehicle with
injury resulting, is not a “listed crime.” 28 V.S.A. § 722(2). The
importance being that a “listed crime” would double the amount of time
that he would have to spend in the program before he became eligible for
its benefits. 28 V.S.A. § 725. As petitioner notes, this challenge does not
go to his liberty interest and is, therefore, not eligible for judicial review of
due process. Parker v. Gorczyk, 170 Vt. 263, 278 (1999).
        Instead, petitioner argues that the Department has violated the
statutory criteria defining a “listed crime.” The provision in question lists
several crimes including: “careless or negligent operation resulting in
serious bodily injury or death as defined in section 1091(c) or (d) of Title
23.” 13 V.S.A. § 5301(7)(X) (cross referenced by 28 V.S.A. § 722(2)).
Petitioner points out that he was convicted under § 1091(b). The problem
with petitioner’s argument is two-fold. First, this is merely a back-door
attack on his classification. Without a liberty interest, petitioner has no
right to appeal the Department’s classification, and we have no standing to
review it. Parker, 170 Vt. at 277. Second, to the extent that petitioner may
challenge the Department’s interpretation of “listed crimes” under V.R.C.P.
75, we find petitioner’s argument problematic. While the statute explicitly
refers to §1091, neither (c) nor (d) has anything to do with defining careless
or negligent operation. So while petitioner was not convicted under either
of these sections, he was convicted of gross negligent operation of a motor
vehicle with injury resulting, which is part of the “listed crime.” Choosing
to ignore the reference to the wrong sections to implement the remainder of
the section makes more sense than a literalist approach that would nullify
the section entirely. Roddy v. Roddy, 168 Vt. 343, 348 (2000). To that
extent we decline petitioner’s invitation to challenge the Department’s use
of “listed crimes.”

       Based on the foregoing, defendant’s motion for summary judgment
is granted. Case dismissed.

       Dated at Burlington, Vermont________________, 2004.
________________________
Judge
