*1 lead to harassment “could identity adopter of the of the disclosure less desirable alternative as to lead to the adoption curtail so limit or ruling. court’s find in the no error Accordingly, we destruction.” V. arouses pet involving predictably of a domestic
Any possession case in this League concern. The actions of interest and public broad least, concern; was, say it warrant such certainly case action Although plaintiffs’ dealings plaintiffs. in its insensitive alleged damages upon based dog of the repossession merit, say that a future this is not to violations lacks constitutional damages distress other recovery for the emotional seeking case — a animal handling impounded of an resulting negligent — case, we are would be unsuccessful. alleged claim not here with its fully complied actions town’s bound conclude ample notice provided ordinance and that its ordinance animal control process requirements. law due consistent with state plaintiffs Affirmed. E. Nelson Joshua
State Vermont [742 1248] A.2d 97-385 & 97-486 Nos. Skoglund, Amestoy, J., Dooley, Morse, Johnson and JJ. Present: C 12, 1999 Opinion Filed November *2 Washington Paul Finnerty, County Deputy Attorney, State’s Barre, Plaintiff-Appellee. for General, Nelson, A. Appel,
Robert Defender Appellate William (On Attorney, Cole, Brief), and Alexa Law Clerk Montpelier, Defendant-Appellant.
Amestoy, InC.J. these consolidated appeals from convictions vehicle, while intoxicated and negligent operation of a motor with fatality resulting, imposition challenges condition of probation prohibits that him from operating a motor during vehicle the probationary period. Specifically, defendant con- tends the court was without authority to restrict his operating privileges period in excess of the mandatory one-year license and, imposed by statute. disagree accordingly, We affirm. The material not in facts are dispute. The case arose when the motor vehicle which defendant was driving collided head-on with vehicle, killing another passengers car, the driver and two in the other injuring and passenger. third Defendant and his passenger were also seriously injured. years old, Defendant v/as nineteen his and blood alcohol at concentration time of the accident was later .236%, determined to nearly three times the limit. legal guilty Defendant entered pleas one count of driving while with fatality intoxicated and resulting, one count of and careless negligent operation of a fatality motor vehicle with resulting. The trial court imposed of three-to-thirty years, sentence all but three suspended, imposed multiple of probation, conditions including that defendant seek and obtain or employment participate in voca- tional training, submit to alcohol testing and attend alcohol counsel- ing, refrain from purchasing possessing alcoholic beverages, limit his associates by officer, and observe a curfew if ordered his presentations make at least per year nine to local high schools and schools, middle and refrain from operating a motor vehicle. sentence on for reconsideration of moved subsequently
Defendant others, authority to restrict the court lacked among that ground, mandatory one-year suspen- longer than the driving for defendant’s 1206(b). the motion. The court denied period under 28 V.S.A. sion sentencing order from the original notices of appeal filed Defendant reconsideration, which we his motion for denial of of review. purposes consolidated for operating on that restriction defendant’s The record reveals overall matrix of component important an privileges was court; limit by sharply it would imposed conditions others, his impede for himself or ability to obtain alcohol defendant’s compliance jurisdiction thereby avoid to leave opportunities ongoing a vivid and probation, provide with his conditions other required whom he was high to the school students testimonial drunk consequences driving. on the address that condition contravened Defendant nevertheless contends separation the constitutional DUI scheme and violated II, It is argued ch. 5. doctrine. See Vt. Const. powers of a driver’s license mandatory one-year suspension providing for the Commissioner resulting, vesting fatality for DUI with calculate exclusisve Motor Vehicles with the *3 law, 23 in with see applicable and revocations accordance V.S.A. 1201c, preempted probation § the court’s Legislature impliedly periods. for longer limit operating privileges to defendant’s ary scheme, the contrary, virtually nothing statutory in the On the of 1201cdemonstrates legislative history or the 23 V.S.A. language, to intent to constrain the court’s traditional legislative Indeed, as conditions in this area. probationary impose below, in this was more case explained fully scheme, entirely legislative the Vermont Consti consistent with tution, law, sentencing discre prior case and the court’s traditional tion. of “separation
This have held that long and other courts division of author contemplate an absolute powers doctrine does hermetically each is among the three branches such that branch ity 228, 1172, D.L., 223, A.2d 164 669 sealed from the others.” re Vt. (1995); Youngstown Sawyer, Sheet & Co. v. 343 1176 see also Tube (1952) (Constitution 579, (Jackson, J., concurring) “enjoins U.S. 635 autonomy but but separateness interdependence, its branches upon re governance necessarily The reciprocity”). practical demands of the blending powers.” “a quire overlapping certain amount 128
D.L.,
229,
Accordingly,
Criminal is a sentencing quintessential example shared responsibility among separate of government. branches The legislature prescribes enforcement; penalty and manner its impose courts sentence within the prescribed by limits legislature; grants and the executive paroles pardons. See State 1992) Borrell, 883, (Wis. v. 482 N.W.2d 889 (discussing shared governmental in responsibility sentencing). Within this tripartite however, system, imposition sentence exercise sentencing long recognized discretion have been as “fundamentally inherently judicial Navarro, 481, People functions.” v. 497 P.2d (Cal. 1972). decision, 487 A trial court’s particular, suspend a criminal sentence conditions of probation under 28 V.S.A. § 252 represents an essential tool in ability the court’s shape criminal sentence rehabilitative needs of the individual defend Hale, ant. 162, 164, 996, (1979) See State v. 137 Vt. 400 A.2d 998 rehabilitative, (purpose to provide opportunity voluntarily defendant to condition his or her behavior requirements law). Indeed, as early 1898, courts have Vermont enjoyed broad all or of a criminal part place sentence and the defendant on such terms and conditions “as the court in reasonably its discretion deems necessary to ensure that the offender law-abiding will lead a life or to him assist (trial 252(a); to do so.” 28 128, § see also No. court may impose probation “for and upon such time such conditions as it Barnett, prescribe”); 221, 231, State 110 Vt. 3 A.2d (1939) (courts traditionally “allowed wide discretion” imposing *4 of probation). conditions limitation, While not without trial court’s discretion in this expansive, context is generally will be if upheld probation condition is reasonably related to the crime for which 134, defendant was Whitchurch, convicted. See State v. 155 Vt. 137, 690, (1990); 364, 577 A.2d 691-92 see also State 156 Emery, v. Vt.
129 (1991) as it long valid so 369, 77, (probation condition A.2d 79-80 593 protection of with rehabilitation defendant has nexus public). of court’s perfor- of to a trial importance probation
Recognizing sentencing, judicial responsibility of its traditional mance traditionally overlapping have viewed with which courts tolerance a legislative not infer authority, lightly should of Court spheres to do of it has chosen power. such When strip intent to courts its intent limit a court’s so, made clear to Legislature has has, example, expressly required authority. It probationary circumstances, conditions in certain probation of imposition specific (restitution crime who have see, to victims e.g., 13 7043 explic- and has expenses), loss or incurred medical suffered material § 11a See id. imposition probation others. itly prohibited (court suspend person sentence of any not on place criminal). assume, It reasonable to as career sentenced violent therefore, actually had to eliminate Legislature that if the intended as a driving to a defendant from prohibit trial court’s discretion offenses, it have grave vehicular would condition so. plainly said
Indeed, judicial authority to courts have that the recognized other restricting operation condition a defendant’s probationary establish usurped by implication. not mere See of motor vehicle should 1968) (Mich. Rio, 324, 157 Ct. City App. Detroit v. Del N.W.2d 326 im statutes (rejecting contention that revocation operation of motor court’s restrict pliedly “preempted” 241, Dickens, probation); People v. 373 vehicle as condition N.W.2d 1985) (Mich. on Detroit to App. (relying City uphold 245 Ct. five driving defendant from probation preventing condition notwithstanding two-year statutory maximum for license revo years (Ga. State, 71, App. Brock v. 299 72 Ct. suspension); cation or S.E.2d 1983) authority Department Safety’s Public (holding court suspend “purport deprive or revoke licenses did ... a driver’s condition (Ga. 1996) 157, A.H.S., 479 App. In re S.E.2d 158-59 Ct. probation”); uphold limiting trial court’s (relying on Brock to beyond statutory suspension period). motor vehicle right operate (Md. State, 1996); City 1177 Sheppard cf. v. 685 A.2d But 1996). (Ohio Tector, App. N.E.2d Ct. Independence — — that Nevertheless, argues and the dissent asserts the court’s preempted has Legislature impliedly *5 130
impose reasonable restrictions his of a motor vehicle. upon operation 1201c, argument § The on 23 V.S.A. which principally provides relies to that the Commissioner of Motor has exclusive authority Vehicles calculate, rules, “in with applicable accordance statutes and the revocations, duration of suspensions, whether and when sus- [and] statute, and pensions Nothing reinstatements shall occur.” in the however, or a to expressly impliedly authority limits court’s restrict a defendant’s of a motor operation probation. vehicle as a condition administrative; responsibilities The commissioner’s stated largely are the prescribe length statutes the conditions reinstatement, charge commissioner implementing (commissioner § terms. See 23 1 carry V.S.A. shall out title); id. § statutes motor 1206 (upon vehicle conviction of person driving influence, for under the court shall forward conviction report commissioner, to id. 2506 § who shall 90 suspend days); license for (suspension negligent operation fatality occurring -with shall period of one year).
Section 1201cmerely vests the commissioner with'exclusive author- ity suspend to and revoke licenses to the pursuant legislative man- date. It a implicate does not independent court’s broad and under 28 252 to a prohibit V.S.A. defendant from as driving a probation. condition of The critical distinction between commis- sioner’s administrative license, to or revoke a a trial probationary power court’s prohibit defendant from operating vehicle, a motor is not a new one. See Commonwealth Kline, (Pa. 1975) 340 A.2d Super. Ct. (distinguishing trial court’s invalid license, order that defendant surrender his from court’s inherent “to proscribe operation of a motor ... vehicle as a condition of probation for length time (Van exceeding Voort, period J., of probation”) concurring). der probation The condition imposed by the trial court here did not require defendant surrender his driver’s license. Nor did it prohibit defendant driver’s obtaining mandatory license once the one-year Moreover, required expired. statute nothing the court’s probationary order precludes defendant from petitioning modify the court to of the conditions to allow restricted of a motor operation (e.g., vehicle travel and from employment), or to strike the condition in entirety. its See 28 253(a).
Finally, nothing underlying purposes of the suspension and necessarily revocation statutes conflictwith demonstrates, Indeed, case a condition clearly as this case. operate a motor opportunity that limits a defendant’s functions from the statutes that entirely serve different vehicle of an license. The operating or revocation provide for others, defendant, protect latter deter punish serve Probation, noted, designed is individual public safety. primarily Thus, lengthy probation during which period rehabilitation. is prohibited of a motor vehicle youthful operation DUI defendant’s in adjusting from a period restricted can serve to assist fully to a more likely, when recidicism time when the defendant a vehicle while recognizes gravity understands Detroit, 157 at 326 City (probation intoxicated. See N.W.2d *6 . . limiting “may. or motor vehicle prohibiting operation condition offender”). upon be a device in a imposing particular useful controls by The conditions of fashioned the court here were probation in designed avoiding prob to assist defendant further DUI-related lems, conditions, and ultimately with his other complying 252(a). are hardly, a life.” 28 These as “leading] law-abiding V.S.A. it, the dissent would “artificial” distinctions. have argues The the of 23 1201c legislative history dissent that by it in a reluctance to prompted part judicial reveals that was allowing full and that range penalties, administer the available judges probation affecting driving conditions of impose privileges the legislative purpose enforcing consistency would defeat noted, however, suspensions. nothing in DUI As uniformity license that in case the mandated legislatively occurred this undermines license, one-year suspension of defendant’s or the commissioner’s suspend in accordance the authority defendant’s license with Moreover, history in legislative nothing legislative directive. the authority. any reveals intent to curtail trial court’s probationary or actually Had about confusion Legislature the been concerned judicial DMV inconsistency caused “interference” conditions, through imposition presumably statutory Legislature would have altered or limited courts’ broad reasonable conditions We decline probation. read an intent into a which is silent on such statute otherwise subject. expressed
As concern with administrative effi- dissent’s routinely ciency, no reason courts which inform perceive why we pur- criminal convictions for commissioner civil inform similarly not poses of license revocation resulting the commissioner of restrictions from driving probation. Nor do perceive we the relevance the dissent’s concern defendant will find little “solace” driver’s purchasing worthless expiration one-year period. license at of the license suspension intended, it Perhaps, as the trial court here will serve sober probationary reminder of defendant’s conditions. ongoing sum, persuaded, Legislature’s statutory We are that the authorization the Commissioner of Motor Vehicles to revoke a prevent defendant’s driver’s was intended court imposing probationary proscribing operation is, a motor vehicle when the condition in the court’s considered judgment, reasonably necessary to an offender in leading assist life. law-abiding Accordingly, judgment must be affirmed. Affirmed. J.,
Johnson, dissenting. the face of a statutory provision explicitly granting the Commissioner of Motor Vehicles exclusive implement to administer and scheme Vermont’s licenses, governing reinstatement driver’s majority today that judges may holds driving withhold privileges beyond the statutorily designated time on an periods ad hoc basis as a condition of holding criminal cases. Because allows trial judges ignore to contradict or altogether the Commissioner’s area, authority in this disregard and to the numerous detailed statutory procedures that have been to provide established consistent and effective enforcement of sanctions for under the influence (DUI), I dissent. *7 (Act
In Legislature 117), the passed Senate Bill 185 which provisions contained numerous intended to render Vermont’s DUI effective, laws more consistent and especially and to address the problem of Among recidivism. these 23 provisions new was V.S.A. § 1201c:
Notwithstanding any direction or from any order person or to the entity contrary, the commissioner of motor vehicles calculate, shall in accordance with and applicable statutes rules, suspensions, the duration of whether and revo- when cations, occur, and shall all reinstatements and other required actions and calculations. § that could not language be more 1201c the plain, gives decide, of Motor authority
Commissioner Vehicles exclusive to
133 statutes, long and how whether, when for applicable accordance with The Commissioner or reinstate driver’s licenses. suspend, to revoke timing of and the suspension over the duration authority retains of any from any or order “[njotwithstanding direction reinstatement only be phrase This latter can contrary.” or to the entity person court, a or judge or referring contrary a “direction order” to here. happened is what precisely which fine DUI, court was free to was of the defendant convicted When in the range provided jail him and sentence within the impose The was also free to statutes. court penalty however, the free, usurp not The court was conditions. when, whether, determine exclusive Commissioner’s privileges. for how defendant’s long DUI, law, the district is convicted person Under Vermont when the commis report “shall forward conviction forthwith court sus immediately shall of motor vehicles. The commissioner sioner days ... of 90 person’s operating period license for pend complies with” the conditions reinstatement until defendant 1206(a).* § “In cases § 1209a. 23 contained in 23 V.S.A. V.S.A. be resulting fatality, suspension year shall one period 1206(b) complies section 23 V.S.A. until the with 1209a.” added). Similarly, fatality if a occurs the result (emphasis vehicle, operation of a motor “the negligent careless and added). (emphasis period year.” shall for a one person The convicted Commissioner reinstate criteria specific until that has satisfied the detailed and person DUI reinstatement, including therapy, education and contained short, triggers duty § 1209a. In a DUI conviction the court Commissioner, charged who the task report make to the is then with license, if defendant’s suspending eventually reinstating program, and when offender with the treatment complies statutory pro and in statutorily periods mandated accordance cedures. § and the statutes
Apart plain meaning from the 1201c other above, Legislature’s grant cited intent the Commissioner over restoration of driver’s exclusive history of Senate Bill legislative licenses reinforced compels suspen impose an *A the Commissioner to 18-month second DUI conviction sion, subsequent 23 V.S.A. and a third conviction results in revocation life. See § 1208. *8 prior with which reveals extreme frustration the ineffectiveness in legislation DUI the occurrence of DUI and the rate of reducing disjuncture DUI Of was primary recidivism. concern between Department courts’ treatment DUI offenses and the Motor issues. As Vehicle’s treatment license Senator Sears explained, receiving messages, in was everyone system mixed “a in creating complicated thing citizens are told one [situation which] thing by the court in healthy and different the DMV That’s not as instruction of the law.” Judiciary terms treatment well Senate Committee, January 1997. (1)
The measures enacted in Bill 185 at reducing Senate were aimed (2) sanctions; judicial allaying public inconsistencies confusion and concerning length resentment license and the reinstatement; (3) requirements and creating for and enforcing consistent for procedures suspending, revoking, and reinstating licenses and treating offenders so that reliable data on the effectiveness of these could be obtained. 1209a measures Section was requirements amended to establish detailed reinstatement based screening therapy, on participation counseling education and programs, drug abstinence from and alcohol under consumption circumstances, certain judicial by designated review decisions Thus, scheme, counselors. under the current license sus- revocation and pension, reinstatement are intimately intertwined procedures for mandating treatment and counseling prevent DUI recidivism.
keyA component achieving the Legislature’s goals stated was vesting the jurisdiction Commissioner with exclusive regu- over the operating lation of privileges. Accordingly, § 1201c stands as central part Legislature’s improve consistency efforts efficacy of Vermont’s DUI laws.
Faced with plain language 1201c the overwhelming evidence of Legislature’s intent to give Commissioner exclu- licenses, sive over suspending reinstating the majority point only can to the claimed “critical distinction” prohibiting between one taking away one’s driver’s license. all due With I respect, that invoking believe this empty distinction exalts form over substance. The primary entitlement bestowed aby driver’s effect, license is the right lawfully operate a motor vehicle. there is no difference between revoking one’s and preventing license one from driving.
Nor am I convinced that purpose behind suspending operating as a privileges condition of is significantly different from law.Both serve under Vermont behind purpose rehabilitative majority emphasizes safety. The public protect in also manifest conditions, purpose but that purpose reinstate which conditions criteria contained the detailed *9 therapy in education participating offenders ment on DUI (DUI have often 117, offenders Finding No. See programs. offenses, meaning that correctional with other charged been dynam antisocial behavior must toward geared services treatment ics). of the Commissioner power the distinguish
In order to between not order does that the court’s court, majority states of the the that I doubt that an license. obtaining operator’s from defendant prevent challenged probation that the learning will find solace not either and does him from merely prevents him from or prevent his driver’s license him to surrender require — that albeit one will a new license obtaining his fee and paying — has suspension period statutory him to once the allow drive pay would want to why someone imagine $20 I cannot expired. license, 608(a), a state when see 23 V.S.A. for useless periodically $5, see 7 for a one-time fee card is available identification 601. only underscores majority’s statement importantly,
More rationale, defendant majority’s it has created. Under problems to drive at the same of entitlement symbol can the universal display he can driving. example, from For prohibited that he is legally time time, with roadblock, he is sober at the assuming through drive a DUI my judgment, on his current license. police relying prohibited if it defend- actions would be much more effective court’s license, the artificial that would eliminate holding but ant order. uphold uses to majority distinction the general the district court’s I do not believe that majority, Unlike conditions overrides impose governing scheme detailed Legislature’s majority separation-of- that the I with the agree and restoration. between each a hermetic seal contemplate does not powers doctrine sentencing is a shared and that criminal government, branch But government. branches among separate responsibility the courts area, has While Legislature spoken. this particular (for instance, operating privileges on lesser restrictions day times of the to certain driving privileges restricting a defendant’s has the work), only the Commissioner such as purposes or for certain revoke, under the statutory framework to suspend, right reinstate the to drive pursuant specific statutory mandates. jurisdictions Other agree that where there are specific, well-defined statutory procedures licenses, a condition of in a resulting de facto license suspension improper. See State, (Md. 1996) Sheppard 685 A.2d 1177-78 (examining cases). In Sheppard, Maryland Supreme acknowledged Court that jurisdictions some have upheld probation forbidding conditions defendants from driving “by finding express legislative delegation of authority to a sentencing judge to restrict driving privileges.” Id. at 1177. But the court reasoned Maryland that the legislature’s provi- sion of specific mechanisms and safeguards for reinstatement of suspended delegated licenses exclusive over suspension of driving privileges to the administrative agency specifically charged duty, and not with the trial courts. See id. at 1180-81.
The same rationale should apply in Vermont. Vermont law sets forth well-defined procedures for suspending and reinstating driver’s licenses, and gives further the Commissioner exclusive authority to implement those procedures. Allowing judges to devise ad hoc probation conditions that amount to de facto *10 threatens integrity this scheme. The majority suggests that the challenged reasonable, condition was but a reasonableness inquiry is irrelevant presupposes because it of the court to impose such a City Tector, condition. See Independence 688 N.E.2d (Ohio 1996). Ct. App. When there is a detailed statutory scheme delegating regulation of procedures to an administrative agency, the general judicial conditions is limited. Accordingly, I would strike the challenged condition.
The tragic consequences of defendant’s reckless conduct may suggest some that the trial court should be allowed unlimited in fashioning latitude probation conditions to control his future behavior, and that defendant any “deserves” and all sanctions the court might impose, including a potential thirty-year de facto suspen- sion of his driver’s case, however, license. The issue is not whether the challenged probation reasonable, condition was but rather whether the district court has to impose its own term on defendant when Legislature, precisely because judges were imposing inconsistent sanctions thus undermining the effectiveness of laws, Vermont’s DUI explicitly jurisdiction exclusive the Commissioner granted emphatically and reinstatement. revocation license suspension,
over in this dissent. Dooley joins say that Justice I am authorized Mountain Corporation Stratton Beecher v. Stratton Wade d/b/a Resort Ski 1093] A.2d [743 98-382 No. Skoglund, J., Dooley, Morse, Amestoy, JJ. Johnson and C Present: 19, 1999 Opinion Filed November