State of Vermont v. Robert Pollander
No. 96-387
State of Vermont
December 5, 1997
[706 A.2d 1359]
Prеsent: Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Affirmed.
David G. Miller of Brown, Cahill, Gawne & Miller, St. Albans, for Defendant-Appellant.
Amestoy, C.J. Defendant Robert Pollander appeаls the Lamoille District Court‘s denial of his motion to dismiss in a civil license-
Defendant was stopped by a law enforcement officer while driving in Morristown in August 1995 and proсessed for driving under the influence (DUI). Test results revealed defendant‘s BAC to be over the legal limit of .08%. Defendant was subsequently arraigned on criminal DUI charges. The State also moved to suspend defendant‘s driver‘s license in a civil action pursuant to
In response to various motions filed by defendant, the district court continued the civil suspension proceeding until after the criminal DUI trial was held in July 1996. At the criminal trial, defendant attacked the validity of the State‘s evidencе concerning his BAC and presented the affirmative defense of necessity. As a basis for his necessity defense, defendant stated that he was driving in his car to intervene in a friend‘s potential suicide and that any alleged violation of the DUI statute was necessary to save a human life.1 The jury returned a general verdict of not guilty. It did not identify the grounds upon which the verdict rested.
The civil suspension hearing was held in August 1996. Central to the State‘s case was evidence that defendant‘s BAC was .08% or more on the night of his arrest. Defendant argued that the Stаte should have been precluded from relitigating the issue of his BAC because that issue had been resolved in his favor at the criminal trial. Defendant also sought to introduce his defense of necessity. The court ruled that the State should not be precluded from relitigating the BAC issue and denied defendant‘s request to introduce the necessity defense. The court made the findings required under the civil suspension statute, see
Defendant first argues that the criminal trial verdict precludes the State from relitigating at the civil suspension hearing whether dеfendant‘s BAC was .08% or more on the night of his arrest.2 Defendant contends that his acquittal at the criminal trial establishes a jury finding that his BAC was not .08% or more, and therefore, the issue of defendant‘s BAC should not have been considered at the summary suspension hearing.
We note initially that the applicability of collateral estoppel to a given set of facts is a question of law. See, e.g., Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 571 (1951). We thus review de novo the district court‘s decision on this matter. Collateral estoppel, or issue preclusion, “bars a party from relitigating an issuе decided in a previous action.” In re J.R., 164 Vt. 267, 269, 668 A.2d 670, 673 (1995). Before precluding relitigation of an issue, a court must “examine the first action and the treatment the issue received in it.” J. Cound, et al., Civil Procedure 1228 (6th ed. 1993). This Court looks to the five elements set forth in Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990), and finds issue preclusion when:
(1) preclusion is asserted against one who was a party or in privity with a party in the earlier action; (2) the issue was resolved by a final judgment on the merits; (3) the issue is the same as the one raised in the later action; (4) there was a full and fair opportunity to litigate the issue in the earlier action; аnd (5) applying preclusion in the later action is fair.
See also Berlin Convalescent Ctr., Inc. v. Stoneman, 159 Vt. 53, 56, 615 A.2d 141, 144 (1992) (applying Trepanier elements). For purposes of analysis, we can assume that the first, third, and fourth Trepanier factors are satisfied: the State was a party to both actions, defendant‘s
The second Trepanier factor requires that the issue be “resolved by a final judgment on the merits” in the earlier proceeding. 155 Vt. at 265, 583 A.2d at 587. A related precept is that preclusion apply only to “issues necessarily and essentially determined in a prior action.” Berisha v. Hardy, 144 Vt. 136, 138, 474 A.2d 90, 91 (1984); see also American Trucking Ass‘ns v. Conway, 152 Vt. 363, 369, 566 A.2d 1323, 1327 (1989) (issue preclusion appropriate only “where that issue was necessary to the resolution of the [previous] action“).
A party seeking preclusion has the burden of introducing ““a sufficient record of the prior proceeding to enable the trial court to pinpoint the exact issues previously litigated.“” Ianelli v. Standish, 156 Vt. 386, 388, 592 A.2d 901, 902 (1991) (quoting United States v. Lasky, 600 F.2d 765, 769 (9th Cir. 1979)). In Ianelli, this Court upheld the trial court‘s decision to deny preclusion because the party seeking preclusiоn had failed to show that the relevant issue was necessary to the earlier jury verdict. Id.; see also Dowling v. United States, 493 U.S. 342, 350 (1990) (where party seeks to preclude relitigation of issue based on previous general verdict acquittal, court must examine record of prior proceeding to determine if rational jury could have grounded its verdict on issue other than that which party seeks to foreclose from consideration). It is not sufficient for a party to assert that an issue could have been the basis of a prior judgment. The Restatement (Second) оf Judgments explains: “If a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.” Restatement (Second) of Judgments § 27 cmt. i (1982). Applying the rule in Ianelli to this case, we find that defendant has not satisfied his burden.
In the criminal trial, defendant attacked the State‘s evidence that he drove while his BAC was .08% or more. Defendant also presented the affirmative defense of necessity based on his friend‘s alleged suicide attempt. Accordingly, the trial judge instructed the jury that a not guilty verdict would follow from either of two jury findings: either (1) that defendant‘s BAC was under the legal limit; or (2) that, regardless of defendant‘s BAC, there was a need that defendant drive
The jury at defendant‘s criminal DUI trial returned a general verdict of not guilty, but did not specify the grounds upon which the verdict stood. Because defendant has not established that determination of his BAC was necessary and essential to the criminal verdict, as required under the second Trepanier factor, the trial court was correct to allow relitigation of the BAC issue at the civil suspension proceeding.
Defendant has also failed to satisfy the fifth element, which requires that “applying preclusion in the later action is fair.” Trepanier, 155 Vt. at 265, 583 A.2d at 587. Relevant considerations for applying this part of the test include “the legal standards and burdens employed in each action.” Id.; see also In re J.R., 164 Vt. at 269, 668 A.2d at 673 (important factor to consider in issue preclusion is degree of proof required in each action).
Defendant contends that this is a case of “crossover estoppel” where application of issue preclusion is appropriate because the State had a full and fair opportunity to litigate the issue of defendant‘s BAC in the earlier criminal trial. Crossover estoppel occurs where an issue adjudicated in a civil proceeding is claimed to be precluded in a subsequent criminal proceeding. State v. Stearns, 159 Vt. 266, 268, 617 A.2d 140, 141 (1992). We have noted that although cases of сrossover estoppel are relatively rare, there is no barrier to the application of the doctrine as long as the standards of proof are the same and no right of jury trial is attached. Id.
Here, defendant argues that the State‘s failure at the criminal trial to prove beyond a reasonable doubt that his BAC was .08% or more precludes the State, at the suspension hearing, from proving by a preponderance of the evidence that defendant‘s BAC was above the legal limit. See
II.
Defendant next argues that the trial court erred in denying him an opportunity at the civil suspension hearing to present the affirmative defense of necessity based upon defendant‘s purported need to intervene in a friend‘s suicide attempt. Defendant acknowledges that the statute limiting the issues to be heard at the license-suspension hearing does not recognize the defense of necessity.3 Defendant concedes further that he makes no constitutional claim,4 but nevertheless urges that we create a public policy exception based on recognition of circumstances where a violation of the law is justified. We decline to do so for the reasons set forth below.
The summary suspension system created by the Legislature in
The necessity defense “is one that partakes of the classic defense of ‘confession and avoidance.’ . . . It admits the criminal act, but claims justification.” State v. Warshow, 138 Vt. 22, 24, 410 A.2d 1000, 1001 (1979). This Court has recognized the necessity defense in criminal cases, see, e.g., State v. Shotton, 142 Vt. 558, 561, 458 A.2d 1105, 1106 (1983), and in tort litigation. See, e.g., Ploof v. Putnam, 81 Vt. 471, 475, 71 A. 188, 189 (1908). Our recognition of the necessity defense in the criminal and tort settings emanates not from any state or federal constitutional imperative but rather from the common law. See Warshow, 138 Vt. at 26-27, 410 A.2d at 1003 (Hill, J., concurring); Zal v. Steppe, 968 F.2d 924, 929 (9th Cir. 1992) (court not persuaded that constitutional right to present necessity defense exists); State v. Dorsey, 395 A.2d 855, 857 (N.H. 1978) (defendant has no constitutional or statutory right to have necessity defense considered by jury).
The Legislature, therefore, is free to determine whether a necessity defense is an issue to be considered in a civil suspension hearing. Cf. State v. Stewart, 140 Vt. 389, 400, 438 A.2d 671, 676 (1981) (Legislature not bound by common law); State v. Messier, 145 Vt. 622, 628, 497 A.2d 740, 743 (1985) (definition of circumstances under which exculpatory or mitigating matters will be recognized is within purview of Legislature). Accordingly, this Court may consider whether to permit a necessity defense in the civil suspension setting only if the Legislature has left the issue unresolved. See Warshow, 138 Vt. at 27, 410 A.2d at 1003 (Hill, J., concurring) (court‘s determination of availability of necessity defense is precluded when there has been deliberate legislative decision).
In interpreting a statute, we must examine the plain meaning of its language “in light of the statute‘s legislative purpose.” Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49, 527 A.2d 227, 228 (1986). The plain language of
Defendant presents a final argument that the trial court should have dismissed the civil suspension because conducting the proceeding a year after the original DUI processing undermines the statutory objective of a speedy license-suspension process. Not only does defendant not show how such delay prejudiced him, but he requested the continuances that effectuated the delay. Defendant‘s argument is therefore without merit.
Affirmed.
Morse, J., dissenting. Consider these facts: Jackie is a young woman who has suffered for years from severe depression and post-traumatic stress disorder resulting from beatings by her former husband. On several occasions she has attempted suicide by taking drug overdoses or slashing her arms and legs. To deal with future emergencies, Jackie and her treating psychiatrist have established a “support list” made up of her therapist and five or six of Jackie‘s friends whom she can call day or night if she is ever in trоuble.
One such evening occurs in early August 1995. She had been diagnosed earlier that day with breast cancer. Her diabetes had been getting worse for several days. Her former husband had just paid her a visit. It seemed to Jackie as though “everything [had come] to a head on that day” and that she simply “couldn‘t cope.” She called her therapist. He was out of town. She tried several other people on her support list. They were unreachable. Finally, at midnight, Jackie reached her old friend and employer, Robby Pollаnder, who was also a member of the support team.
Pollander could tell from her voice that Jackie was “in trouble.” Indeed, he “felt that Jackie‘s life was at risk.” Taking his dog with him for company, he started to drive to Jackie‘s house in Lyndonville. Although he had consumed several beers, he didn‘t believe that his ability to drive was impaired. Nevertheless, he was stopped en route by a police officer who had observed him rapidly accelerate from forty
When Pollander ultimately went to Jackie‘s house, he found her conscious but in a seemingly “blank” state. Suddenly she went into convulsions and fell to the floor. Pollander called 911 and an emergency medical team arrived shortly thereafter. One member of the EMT told him that his quick action had probаbly saved Jackie‘s life.
Pollander was later tried on criminal DUI (driving under the influence) charges. Jackie, the arresting officer, and Pollander himself all provided undisputed testimony at trial concerning the events outlined above. The jury returned a verdict of not guilty. In a subsequent administrative license-suspension hearing, however, the trial court refused to permit Pollander to introduce the same evidence, found that all of the elements of the offense of DUI had been established by a preponderance of the evidenсe, and entered judgment for the State.
These are the real, undisputed facts of this case. Yet one would never know from reading the Court‘s opinion the injustice this matter poses. Indeed, it is the Court‘s failure to focus on the facts that leads, in my view, to its erroneous conclusion that Pollander‘s purpose in driving on the evening in question was irrelevant to his license suspension. Quite to the contrary, there is virtually no evidence that the Legislature, in providing for administrative suspensions, intended to deprive an individual of the traditional, common law defense of “necessity,” the principle that a violation of law may be justified to serve a greater public interest, in this case to preserve a human life. See State v. Warshow, 138 Vt. 22, 27, 410 A.2d 1000, 1003 (1979) (Hill, J., concurring) (necessity defense recognizes that there are circumstances “where the value protected by the law is eclipsed by a superseding value, and that it would be inappropriate and unjust to apply the usual criminal rule“). Accordingly, I respectfully dissent.*
Noting that the necessity defense is not among the issues listed in
In addition, we have repeatedly “emphasized that the precept [of expressio unius] . . . is only one aid to . . . interpretation and must give way to others in appropriate casеs.” Verburg, 159 Vt. at 166, 616 A.2d at 239; see also Oxx v. Department of Taxes, 159 Vt. 371, 375, 618 A.2d 1321, 1324 (1992) (The maxim “is relatively weak among rules of statutory construction.“); Clymer v. Webster, 156 Vt. 614, 625, 596 A.2d 905, 912 (1991) (maxim of expressio unius should be applied with caution and is not conclusive as to statute‘s meaning). Indeed, courts and commentators alike have noted the weakness of a maxim premised on the assumption that all omissions in legislative drafting are deliberate. As one federal court has observed, “[t]his maxim is increasingly considered unreliable . . . for it stands on the faulty premise that all possible alternative or supplemental provisions were necеssarily considered and rejected by the legislative draftsmen.” National Petroleum Refiners Ass‘n v. Federal Trade Comm‘n, 482 F.2d 672, 676 (D.C. Cir. 1973); see also Director v. Bethlehem Mines Corp., 669 F.2d 187, 197 (4th Cir. 1982) (“The maxim is to be applied with great caution and is recognized as unreliable.“); R. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 813 (1983) (canon based upon assumption of “legislative omniscience . . . is not helpful“). The State has not adduced, nor has research uncovered, any evidence in the legislative history of
Caution in applying the maxim is particularly advised when the result is to eliminate a longstanding common law doctrine such as the necessity defense. See State v. Hastings, 801 P.2d 563, 564 (Idaho 1990) (“Necessity as a defense has a long history,” appearing in early English cases); State v. Tate, 505 A.2d 941, 948 (N.J. 1986) (Handler, J., dissenting) (“provision for necessity-justification encapsulates a criminal defense that has long been recognized at common law“). As noted, the doctrine “proceeds from the appreciation that, as a matter of public policy, there are circumstances where the value рrotected by the law is eclipsed by a superseding value.” Warshow, 138 Vt. at 27, 410 A.2d at 1003 (Hill, J., concurring).
The defense has been recognized in a variety of circumstances, not all involving heinous offenses. In State v. Messler, 562 A.2d 1138, 1140-42 (Conn. App. Ct. 1989), for example, the court held that a defendant charged with speeding had the right to present the defense
We have repeatedly stated, moreover, that principles deeply ingrained in the common law will not be overturned by statute absent clear and unambiguous language to that effect. See Swett v. Haig‘s, Inc., 164 Vt. 1, 5, 663 A.2d 930, 932 (1995) (“Words of doubtful meaning do not change common law rules; the intent to do so must be expressed in clear and unambiguous language.“); Estate of Kelley v. Mogul‘s, Inc., 160 Vt. 531, 533, 632 A.2d 360, 362 (1993) (“[R]ules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language.“) (quoting E.B. & A.C. Whiting Co. v. City of Burlington, 106 Vt. 446, 464, 175 A. 35, 44 (1934)).
Because
Accordingly, I would reverse the judgment of the trial court.