State of Vermont v. Ronald Kreth
No. 86-002
Supreme Court of Vermont
September 16, 1988
[553 A.2d 554]
Present: Allen, C.J., Peck, Dooley and Mahady, JJ., and Barney, C.J. (Ret.), Specially Assigned
The majority has slapped the police in the face by today‘s decision, and seriously impeded legitimate criminal investigation. It has substituted formula for thinking, and failed in its social responsibility and obligation to the people of the state under the
Marc D. Brierre, Rutland County Deputy State‘s Attorney, Rutland, for Plaintiff-Appellee.
Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate Defender, Montpelier, for Defendant-Appellant.
The statute under which defendant was charged provides:
(d) A person who enters a dwelling house, whether or not a person is actually present, knowing that he is not licensed or privileged to do so shall be imprisoned for not more than three years or fined not more than $2,000.00, or both.
That Ronald August Kreth of Danby at North Clarendon in this county and territorial unit on the 4th or 5th day of March, 1985 did then and there enter a dwelling house knowing he was not privileged to do so, to wit, the Nancy J. Meszaros and Mark A. Meszaros residence.
With one exception, the information tracked the statute. The exception is that it charged defendant with entering while knowing that he was not privileged to do so, but failed to charge — as set out in the statute — that he knew he was not licensed to enter. Because of this difference, defendant argues that the information failed to charge him with a crime and any conviction based on the information must fail. Defendant raises this argument for the first time in this Court.
The requirements on the content of an information are set out in
An information that omits an essential element of the crime charged is defective and cannot serve as the basis of a conviction. State v. Bradley, 145 Vt. 492, 495, 494 A.2d 129, 132 (1985). In Bradley, the defendant was sentenced for driving with her license suspended under a provision requiring a minimum jail term. The provision applied only if defendant‘s license had been suspended for certain specified reasons. The information charging defendant did not specify the grounds under which defendant‘s license had been suspended. The Court found that the information was defective and could not serve as a basis for imposition of sentence under the mandatory jail time provision. Because the challenge was to the sufficiency of the information, the Court held that it could be raised for the first time on appeal. Bradley, 145 Vt. at 494, 494 A.2d at 131; see also
Bradley governs in this case unless there is something about this information that saves it. The State argues that there is a ground to distinguish this case — that is, that the terms “licensed” and “privileged” are practically synonymous so that “stating both licensed and privileged in the body of an information serves no valid or rational purpose.” There is some force to the State‘s argument. Black‘s Law Dictionary defines “license” in the context of entry on real property as a “personal or revocable privilege to perform an act or series of acts on the land of another.” Black‘s Law Dictionary 830 (5th ed. 1979). A “licensee” is defined as “[a] person who has a privilege to enter upon land arising from the permission or consent, express or implied, of the possessor of land . . . .” Id. A “privilege” in tort law is a rule “of law by which particular circumstances justify conduct which otherwise would be tortious . . . .” Id. at 1078.
The Restatement of Torts follows similar definitions. The definition of “privilege” notes that a privilege can be based on “the consent of the other affected by the actor‘s conduct” or on another overriding interest. Restatement (Second) of Torts § 10(2) (1965). In the context of trespass to land, the Restatement
As alluring as the State‘s argument is, we believe there are significant reasons to reject it. We start with a reluctance to find that a part of a statute is surplusage, a necessary finding to accept the State‘s argument. See State v. Stevens, 137 Vt. 473, 481, 408 A.2d 622, 627 (1979); In re Paquette, 112 Vt. 441, 446, 27 A.2d 129, 132 (1942). Thus, “[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous . . . .” 2A N. Singer, Statutes and Statutory Construction § 46.06, at 104 (C. Sands 4th ed. 1984) (footnote omitted). It is only when “words seem unnecessary, or have no meaning within the scheme of the statute, or seem to have been inadvertently used, [that] they will be treated as surplusage and disregarded in order to effectuate the Legislative intent.” Stevens, 137 Vt. at 481-82, 408 A.2d at 627.
Our reluctance to accept the State‘s argument is heightened because there exists indicia of legislative intent to the contrary. The source of the phrase in issue is § 221.2(1) of the Model Penal Code adopted by the American Law Institute in 1962. While its provision on criminal trespass is somewhat different than ours, the essential similarity is that the offense defined in § 221.2 is committed only if the trespass is done by a person “knowing that he is not licensed or privileged to do so.” Model Penal Code § 221.2(1) (1980). A similar phrase is found in the Model Penal Code‘s burglary definition. See id. at § 221.1(1).
The comment to § 221.2 suggests that the authors intentionally included the dual elements of license and privilege. The comment states that “[t]he knowledge requirement is designed primarily to exclude from criminal liability both the inadvertent trespasser and the trespasser who believes that he has received an express or implied permission to enter or remain.” See id. at § 221.2 comment 2(a). Presumably, the latter situation involves licensed entry while the former involves privileged entry. The comment to
The Model Penal Code sections, or variations on them, have been adopted in a number of states. While the decisions are not entirely consistent, they generally support the interpretation that “licensed” refers to a consensual entry while “privileged” refers to a nonconsensual entry. Thus, in Commonwealth v. Starkes, 268 Pa. Super. 108, 112-13, 407 A.2d 853, 855 (1979), the court faced a charge that defendant committed a burglary and analyzed the issue as one of possible privilege or license. Cf. People v. Crowell, 122 Misc. 2d 133, 470 N.Y.S.2d 306 (Oswego County Ct. 1983) (the distinction between license and privilege may determine when the right to be on the premises is terminated); People v. Czerminski, 94 A.D.2d 957, 464 N.Y.S.2d 83 (1983) (privilege to be on premises expired). In State v. Thaxton, 120 N.H. 526, 528, 419 A.2d 392, 393 (1980), the court used the common law to define one as privileged to enter “if he may naturally be expected to be on the premises often and in the normal course of his duties or habits.” See also Commonwealth v. Corbin, 300 Pa. Super. 218, 222-24, 446 A.2d 308, 311 (1982) (adopting Thaxton definition). Finally, in State v. Thibeault, 402 A.2d 445, 448 (Me. 1979), a case involving an entry with consent, the court found only the language on license to be relevant to determine whether the defendant committed a burglary.
The application of the Model Penal Code language in those states that have adopted it in relevant part, as well as the comments to the code language, suggest strongly that the wording was used to draw a common sense line between consensual and lawful nonconsensual entries on land. For the foregoing reasons, we cannot say that the element of knowledge of lack of license is surplusage in the statute in that its inclusion seems to be neither inadvertent nor “repugnant to what [we find], on the basis of other indicia, to be the [L]egislative intent.” 2A N. Singer, Statutes and Statutory Construction § 46.06 (C. Sands 4th ed. 1984) (footnote omitted). Accordingly, the omission of this element in the information is fatal to this case.
Reversed.
My amused euphoria was short-lived; satire was not the intent at all. The majority is in dead earnest. In the name of the presumption against surplusage in statutory language (which is not valid here in any event) the majority concludes that the words “licensed” and “privileged,” as they appear in
Today‘s result will, of course, be greeted with cheers by would-be trespassers. The opinion makes it exceedingly difficult, if not a practical impossibility, to prosecute anyone successfully under
Even the very words used by the legislature in the enactment must yield to a construction consistent with legislative purpose. In re Preseault, 130 Vt. 343, 348, 292 A.2d 832, 835 (1972). As that case points out, we operate on the presumption that no . . . unreasonable result was intended by the legislature.
. . .
Lubinsky, 148 Vt. at 50, 527 A.2d at 228.
I think it can also be assumed that the legislature intended to enact a law which could be enforced with at least reasonable facil-
The most regrettable aspect of today‘s result is that it is not necessary or inescapable; the trial court can, and therefore should be, affirmed. Having, long ago, become infected by the virus of common sense, which persuades me to assume that legislative intent matches the ordinary meaning of the statutory language employed, and guides me away from the use of legalistic smoke screens to support a predetermined result, I cannot but dissent, giving herewith my reasons.
I.
The majority claims that the words “licensed” and “privileged” as they appear in
Except for the structure of
It is interesting that when
Again assuming the validity of the majority‘s construction, I can agree that if a person is “licensed” to enter another‘s premises although he may not be otherwise “privileged” to do so, he cannot be convicted of violating
II.
Turning to a second ground for my dissent, I would begin by emphasizing that my first argument above is predicated on the arguendo assumption that the majority may be correct in holding that “licensed” and “privileged” are not synonymous, and therefore the statute describes two separate offenses.
In fact, I disagree with that holding. The various books of synonyms as well as the dictionaries tend to confirm their essential similarity. Nor does the fact that they may be synonymous necessarily lead to the majority‘s hasty conclusion that, if they are, the statute contains a surplusage. The word “or” which, in this case, joins “licensed” and “privileged” is frequently employed to clarify or explain, by the very use of a synonym or synonymic phrase, the meaning of another word, thus: “zoology, or the study of animals.” Anyone familiar with 18th and 19th century fiction will recall the frequent use of alternative titles joined by “or,” as ”Frankenstein or the Modern Prometheus.” Use of the connective “or” does not, per se, create surplusage as claimed by the
As long as an applicable license remains in effect, the licensee has the right or privilege to operate a motor vehicle, to hunt, fish, practice a profession or an occupation, operate a bar, sell beer or wine, even to marry. All of these, and others, involve privileges resulting from formal licenses granted by a public agency authorized by law to do so.
These instances involve “license” in a formal, public sense. But its meaning is by no means so narrowly limited. In common parlance it may also be used, inter alia, to describe any freedom to deviate from generally accepted conduct, rule or practice. Webster‘s New World Dictionary of the American Language 815 (second college ed. 1979) (but this same “freedom” is also a “privilege” in any ordinary, common [and common sense] usage). In a 1983 case involving limitations on permission given to enter a neighbor‘s land for a specific purpose, this Court said:
Nevertheless, [the limited permission] cannot be construed fairly or reasonably to expand her consent . . . beyond its expressed limitation, to include either a general license to enter for any purpose, or for another more limited or specific purpose.
Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1103 (1983) (emphasis added).
Similarly, in cases involving the duty of care owed by a landowner to one who enters upon his land with the consent of the former, courts frequently and commonly employ the word “licensee.” “Nor is this a case where the injuries were received by a . . . bare licensee . . . .” Trudo v. Lazarus, 116 Vt. 221, 223, 73 A.2d 306, 307 (1950) (emphasis added). “Assuming that she was either a trespasser or a licensee . . . .” Watterlund v. Billings, 112 Vt. 256, 260, 23 A.2d 540, 542-43 (1942) (emphasis added).
The above discussion of “license” in the context of an entry on another‘s land may seem to track the single-purpose definition dredged up to make it fit the majority‘s result. However, the ordinary meaning of the word in common American-English is not that narrow or limited, and there is a “presumption that the ordinary meaning of the statutory language was intended by the legislature.” State v. Hull, 143 Vt. 353, 354, 465 A.2d 1371, 1372 (1983) (emphasis added).
The word “license” is not limited in common usage. For example, it is even employed to express “excessive, undisciplined freedom.” Webster‘s New World Dictionary of the American Language 815 (second college ed. 1979); the word “licentious” derives from it. Id. The phrase “poetic license” is not uncommon, and the same is true of other every-day, ordinary uses of “license” as synonymous with, or included in, such words as permission, consent, privilege. Nevertheless, “privilege,” while it includes “license,” is also broader. I submit, therefore, that the use by the legislature of the phrase “licensed or privileged” does not automatically give rise to a redundancy or surplusage. It merely clarifies the legislative intent that the word “license” is not necessarily to be restricted to a narrow or formal context, but includes as well its broader and less formal sense as included within the meaning of a privilege. Since this is consistent with “ordinary meaning,” it should control here and preclude any such speculative adventuring as that indulged in by the majority.
Some digressions on the general subject may be helpful. The legal doctrine of “necessity” may, under certain circumstances, confer a license to go on lands of another; this is implicit in Ploof v. Putnam, 83 Vt. 252, 75 A. 277 (1910). But since the right lacks the authority of a formal license or a “license by consent,” it is better understood, perhaps, in the “privilege” sense.
I think the foregoing discussion is more than adequate to establish that, while “license” and “privilege” are interchangeable in common parlance, the former is frequently used in a narrower and, at times, a more formal sense although it is included in the latter; a license is, or confers, a privilege. I conclude therefore that even if these words are properly synonymous, it is wholly unnecessary and improper to conclude that the use of both results in an inescapable surplusage. Defendant was charged with an entry “knowing he was not privileged to do so.” This is entirely consistent with a logical, simpler and far more likely intent of
Peculiarly enough, the majority actually acknowledges this. Quoting Black‘s Law Dictionary 830 (5th ed. 1979), the opinion states that, in the context of entry on real property, “license” means a “‘personal or revocable privilege to perform an act or series of acts on the land of another,‘” and from the same source, and in the same context, a “licensee” is one “who has a privilege to enter upon land arising from the permission or consent, expressed or implied, of the possessor of land . . . .” (but for his own purposes rather than those of the owner). Id. In addition to its other faults, the opinion is internally inconsistent.
The above quotes from the majority opinion constitute an express recognition of one of the two bases of this dissent. At that point I was hopeful that clear thinking and analysis was about to prevail. Unhappily, it was shortly thereafter that the fatal whop-
In searching for an introductory comment for my objection to this bad reasoning, I am grateful for a remark written about the United States Supreme Court by Justice Jackson: “We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953). I am forced to find what little consolation there may be in this acknowledgement. The statement that it is necessary to find surplusage is simply preposterous. I like to think that the majority is capable of better reasoning than that; I am, therefore, at a loss to pinpoint the motive which inspired it: an aid to a preconceived result? An unfortunate hasty and superficial analysis? Whatever the motive, it started the majority down a tortuous path to the incredible result.
Having taken this absurdly wrong turning at the outset, the opinion gropes for help in a tangled morass of tort law, whereas we are involved here with the criminal law, and further floundering about in the Model Penal Code (which is not law in this state) expression of concern for scienter. That is an equally absurd concern; the language of
I think it is clear from the jungle which is the majority opinion that, once having rejected the simple synonym theory of the case outlined above, the majority virtually concedes that it cannot make any clear distinction between “license” and “privilege,” and so, like Frankenstein, it creates a monster made of bits and pieces of legal lore from various sources, including the assignment of purely artificial concepts to both “license” and “privilege,” otherwise unknown, manufactured solely to justify an equally contrived construction of one particular statutory subsection. It restricts the standard and ordinary usage of the words contrary to the long-standing rule of this and other courts: it is presumed the ordinary meaning of statutory language was intended, State v.
I have indicated above that the consequence of today‘s decision makes prosecution extremely difficult. In final summary, I can only reiterate that, if the State is required to charge with reference to both license and privilege as separate concepts, endless bickering and drawing of microscopically fine lines are inevitable. It will involve the prosecution, the defense, and the courts in comic-opera attempts to make a clear distinction between two words which can be, and often are, used interchangeably, or the meaning of one included within the meaning of the other, all in both common and formal usage, except for the wonderful penchant of the legal mind to create a formal distinction that exists nowhere else. This, in turn, gives rise to complete and technical obfuscation and long years of confusion and court time. The problems of proof, trying to demonstrate, as separate concepts, both the absence of license and the absence of privilege, are also overwhelming and obscure. I had always assumed, with considerable naivete it would seem, that the first step in statutory construction was to test the wording by the ordinary meaning rule. Of course, in this case, it would have been impossible for the majority to have reached its preconceived result had it done so. Accordingly, the rule was swept under the carpet of an elaborate word game. We are denied the use of plain, everyday American-English, both formal and informal-colloquial, and forced into trying to make sense of that alien tongue known as legalese.
If all this is necessary, certainly it must be faced; it is not. Except for the sinister capacity of the judicial mind to create complexities where none exist, we are dealing with a relatively straightforward statute, open to a much more obvious and simple construction which protects all the rights of the accused, including the information needed for his defense. Such a simple construction is also consistent with the presumed intent of the legislature to enact an anti-trespass law that will not be frustrated in its enforcement by judicial nit-picking. “Let who will be clever” for cleverness’ sake; but it should not be the judiciary.