In Re Miller

Burgess, J.,

¶ 24. dissenting. We have just been treated to an unwarranted judicial revision of 13 V.S.A. § 7559. Its plain and unambiguous language is ignored in favor of terms and purposes foreign to its passage. The trial court’s construction of the act, entirely consistent with legislative intent evinced by the chronology and context of its earlier expression and later amendment, is overruled based, in part, on inapposite snippets of legislative history. The Legislature’s rational choice to create greater and lesser-included offenses for violating conditions of release is inaccurately characterized as absurd. Because the statute, as enacted and intended, was properly applied by the trial judge, I respectfully dissent.

¶ 25. Conditions of pretrial release may be imposed as necessary to reasonably assure defendants’ appearance, id. § 7554(a)(1), and to reasonably assure public protection, id. § 7554(a)(2). Conditions may, or may not, include orders to appear at certain times and places. Depending on risk of flight, defendants may be ordered to “return to custody after specified hours,” id. § 7554(a)(1)(F), to abide by curfew hours at a residence, or simply to register at a police station at designated times to confirm their continued presence in the area, id. Depending on risk to public safety, similar time and place conditions, like police station, probation office, or counseling check-ins, may be imposed to confirm defendants’ ongoing sobriety, alcohol or drug treatment, probation, and compliance with mental-health treatment. Id. § 7554(a)(2)(C). Other defendants, who present a risk to public safety, may have no time-and-place conditions, but may be burdened by conditions restricting associations or travel, id. § 7554(a)(2)(B), harassment of others, id. § 7554(a)(3), or drug or alcohol use, id. § 7554(a)(2)(C).

¶ 26. Two penalties are provided for violating release conditions. The first, set forth at 13 V.S.A. § 7559(d), is up to two years’ imprisonment for failure to appear, as ordered under § 7554, “at *564a specified time and place in connection with a prosecution.” The second is up to six months for the lesser-included offense of criminal contempt, as set forth at § 7559(e), for failure to abide by “a condition of release” generally imposed under § 7554. See State v. Forbes, 147 Vt. 612, 616-17, 523 A.2d 1232, 1235 (1987) (holding that “a lesser-included offense of another ... is composed of some, but not all, elements of the greater offense and does not have any element not included in the greater offense”).

¶ 27. In an unnatural reading of the statute, the majority construes away the Legislature’s gradation between the greater § 7559(d) offense of violating time and place conditions of release, and the lesser-included § 7559(e) offense of violating any condition of release. Unnecessarily, the majority declares impossible the more serious violation under § 7559(d), for a failure to appear at a time and place, such as at a police station, a drug treatment facility, a probation office, a drug or alcohol test, to a designated custodian, or to abide by curfew or work release from pretrial incarceration, even when such conditions are imposed to “reasonably assure the appearance” of the defendant under § 7554(a)(1). In its place the majority substitutes one penalty for a failure to appear at court “to directly advance a prosecution,” instead of for violating time-and-place orders imposed “in connection with a prosecution” as stated by § 7559(d), so that now violations of time-and-place conditions, as well as all other conditions, are subject only to the lesser penalty of § 7559(e).

¶ 28. The majority’s construction is not only at odds with the statutory language, but it derails the statute from its purpose as clearly reflected in its legislative evolution. Section 7559(d), in its current form since 1982, expressly outlawed violations of orders to appear at times and places “in connection with a prosecution.” 1981, No. 223 (Adj. Sess.), § 15. Courts were, at the time, authorized to order conditions only to “reasonably assure the appearance of the person for trial.” 13 V.S.A. § 7553a(a) (Cum. Supp. 1968) (§ 7553a was recodified in 1974, as amended, at the current § 7554). Expressly included in these conditions were orders to report or appear at times and places other than at court. Id. § 7553a(a)(l) (placing defendant in the custody of another), (2) (restricting travel or “place of abode”) and (5) (authorizing “any other condition deemed reasonably necessary to assure appearance”) (Cum. Supp. 1968). The same act directed courts to issue the defendant a statement “of the conditions *565imposed,” and the “penalties applicable to violations of the conditions of his release.” Id. § 7553a(c) (Cum. Supp. 1968) (emphases added). The Legislature thus clearly stated that, without exception, condition violations could be penalized. And, at that time, the only “applicable” statutory penalty for the condition violation of failing to report was the fine and up to two years of incarceration provided by § 7559(d).

¶ 29. Thus, as of 1982, the only conditions that could be issued “in connection with a prosecution” were those authorized by § 7553a. Those conditions included orders to report at certain times and places as would “reasonably assure the appearance of the person for trial,” including reporting conditions. 13 V.S.A. § 7553a(a)(l)-(5) (Cum. Supp. 1968). All time and place conditions of release, without distinction, required a warning that their violations would be penalized, § 7553a(c) (Cum. Supp. 1968), and at that time, § 7559(d) offered the only available statutory penalty. Not one such condition could be said to “directly advance a prosecution” — the standard the majority grafts onto the statute today. Nevertheless, and contrary to the majority’s construction, violations of all § 7553a (Cum. Supp. 1968) time-and-place conditions were subject to the failure-to-appear penalty under § 7559(d).

¶ 30. Subsection 7559(e) was added later to enforce, not just the time and place conditions enforceable under subsection (d), but any and all conditions of release. In this regard, it is important to note that when subsection (d) was first in place, § 7554 (then § 7553a) did not yet authorize the trial court to impose conditions to affirmatively protect the public, complainants, or witnesses.3 This changed in 1987 with the amendment of § 7554(a), which created § 7554(a)(2) to permit conditions of release to “reasonably assure protection of the public.” 1987, No. 102, § 2. Contemporaneous with that amendment was the addition of § 7559(e). Id. § 3. This subsection penalizes violations of § 7554 conditions of release generally, including the then-newly-authorized conditions for protecting the public, such as restrictions on contact, § 7554(a)(2)(B), restrictions on alcohol or drug use, § 7554(a)(2)(C), and protections against victim or witness harassment, § 7554(a)(3). 1987, No. 102, §2.

*566¶ 31. The new § 7559(e) penalty was, of course, critical to enforcing the new protective conditions. Violations of protective conditions lacking any time and place reporting requirements could not be subject to the existing § 7559(d) penalty for failure to “appear at a specified time and place in connection with a prosecution.” The Legislature enacted the lesser § 7559(e) penalty for any condition violation, rather than leaving protective violations unpunished under § 7559(d). Thus, before and after 1987, failures to obey time-and-place reporting conditions issued pursuant to § 7554 were punishable under § 7559(d), while after the 1987 amendment to § 7554 and the addition of § 7559(e), violations of any condition were unambiguously punishable under § 7559(e).

¶ 32. The majority alters this fairly straightforward legislative scheme based on two assertions, mutually supporting but lacking any foundation in the statutory text. The first is that the Legislature intended to limit § 7559(d) enforcement only to time- and-place conditions that “directly advance a prosecution,” ante, ¶ 14, rather than conditions “to appear at a specified time and place in connection with a prosecution” as set forth in the statute. The second is that the pretrial release statutes as a whole reflect this intent by creating two separate and exclusive classes of conditions: one the majority characterizes as “appearance conditions” specifying only times and places that “directly advance a prosecution,” and a lower caste of “conditions of release” encompassing all other conditions that do not directly advance a case.

¶ 33. Violations of the majority’s “appearance conditions” that “directly advance a prosecution” are, we are told, exclusively subject to the more severe punishment of § 7559(d), while violations of all the other lesser “conditions of release” — like reporting to a police station, probation office, or curfew residence to confirm a defendant’s presence and continuing likelihood to appear at court — face the lesser penalties for contempt, along with the violations of no-contact, no-association, no-travel, no-alcohol and other protective conditions to which § 7559(e) applies. The majority’s “appearance conditions” are exclusive indeed, since only an order to attend court can, practically speaking, “directly advance a prosecution,” and no other kind of “appearance condition,” according to the majority’s construction, would be authorized to “reasonably assure the appearance of the person as required” under § 7554(a)(1). Thus, the majority reduces actionable violations of § 7559(d) to just one: missed court dates. Of *567course, had the Legislature intended such a singular and limited use of the greater subsection (d) penalty, and a corresponding application of the lesser subsection (e) penalty to all other violations, it could have said so. It did not.

¶ 34. Having no statutory text to support its approach, the majority finds it necessary to infer a distinction between enforcement of time-and-place appearances to “directly advance a prosecution” and the broader violation of failing to appear “in connection with a prosecution” as defined by § 7559(d). To get there, the majority posits that “conditions of release . . . are intended to ensure the person’s appearance at trial.” Ante, ¶ 13. So, to avoid rendering the modifying phrase “in connection with a prosecution” meaningless, we are told the Legislature must have meant the more severe subsection (d) penalty for violations of conditions that directly advance a case, rather than for failures to appear at times and places ordered merely “in connection with a prosecution,” as stated. Ante, ¶ 14. The premise, however, that all conditions of release are intended to assure a defendant’s appearance at trial is plainly wrong. The statute specifies that if the public is not protected by reporting and appearance conditions of release alone, the court “may in addition impose . . . conditions which will reasonably assure protection of the public.” 13 V.S.A. § 7554(a)(2) (emphasis added). Assuming, logically, that the Legislature intended such conditions to be enforced, rather than amount to a nullity, these are also termed “conditions of release” enforceable under § 7559(e). While some conditions could serve both purposes, there are certainly others, i.e., no-contact conditions, conditions forbidding harassment of victims, conditions that defendants not associate with co-defendants or witnesses, orders to stay out of town and the like, that have nothing to do with assuring court appearances.

¶ 35. No statutory language suggests that conditions subject to subsection (d) enforcement are of a subspecies separate from what the statute simply states: conditions to “appear at a specified time and place in connection with a prosecution.” Confining all time- and-place violations, except against those conditions directly advancing a case, to the lesser sanction of § 7559(e) is not, as claimed by the majority, explained by the statute’s authorization of warrantless arrest for both failure to appear at court and failure to abide by travel and contact restrictions under § 7559(f). Nor is it apparent why the statutory authorization to revoke bail *568for violations of nonharassment “conditions of release,” § 7575(1), repeated violations of any “condition of release,” § 7575(2), and “fail[ure] to appear at a specified time and place,” § 7575(4), supports a claim of legislative intent to treat a single failure to appear at court differently and more seriously than serial violations, as in defendant’s case, of other time-and-place conditions. Moreover, the Legislature’s consideration of both — repeated violations of “conditions of release” and failure to appear at a judicially ordered “specified time and place” — as equally worthy of bail revocation, see id. § 7575(2) and (4), suggests, instead, that the sharp distinction perceived by the majority between some appearance conditions and others was not shared by the Legislature.

¶ 36. That some conditions to assure appearance at court proceedings, such as ordering a defendant into the watchful custody of a responsible adult, orders to maintain sobriety, curfew, and the like, can equally serve to protect the public, and vice-versa, is a coincidence entirely consistent with § 7554. Penalizing noncompliance with time-and-place mandates imposed to assure future appearances, such as reporting to a police station, probation office, nightly lock-up, or curfew residence under § 7559(d), as seriously as a failure to appear for a court status conference or calendar call, is just as consistent. An election to charge the same violation as a lesser-included contempt offense under § 7559(e), commensurate with associating with a co-defendant or crossing a town line when prohibited by conditions of release, is also a rational option not inconsistent with the statute. Nor is it absurd for the Legislature to allow prosecutors the discretion to initiate a lesser charge, and also to ramp up the charge for new offenses, as in defendant’s case, when violations turn chronic. These logical results beg no interpretation or corrective construction from this Court.

¶ 37. The majority overreaches in characterizing as absurd the potential for a more severe penalty for time-and-place violations than for violations of other public-protection conditions. There is no challenge to proportionality here, and the weighting of penalties for related infractions is presumptively within the prerogative of the Legislature. When protective conditions and reporting conditions merge or overlap, violations of those protective conditions can be treated more seriously than others. If, as the majority notes, assuring appearance at court was “of paramount *569importance” to the Legislature, ante, ¶ 18, it is hardly strange that the Legislature would elect to treat violations of time-and-place conditions designed to support and promote court attendance, i.e., reporting to police stations, probation offices, curfew residences, and nightly lock-ups, as seriously as failing to appear at court. This plain legislative scheme, and its allowance of a lesser-included offense for all violations, including violations of other conditions like travel limits or nonharassment orders, may be curious, or even imperfect, but it is not irrational or ridiculous.4

¶ 38. Finally, the majority turns to selected instances of legislative history as a bootstrap for its construction of § 7559(d) and (e). At the outset, resorting to legislative history falls outside of our canons of construction since the statute is plain on its face, Dep’t of Corr. v. Human Rights Comm’n, 2006 VT 134, ¶ 22, 181 Vt. 225, 917 A.2d 451, and when read in context with its statutory siblings, its own enactment and the amendment to § 7554, the § 7559 enforcement subsections present neither surplusage nor mysteries demanding clarification. Ultimately, the history described adds little, if any, weight to the majority’s rationale and cannot override the language of the statute. Chayer v. Ethan Allen, Inc., 2008 VT 45, ¶ 18, 183 Vt. 439, 954 A.2d 783.

¶ 39. First, the majority submits statements by the sponsor of a proposed addition of § 7559(e) not passed in 1982 to explain legislative intent behind the passage of subsection (e) in 1987, five years later. If it explains anything, the sponsor’s declaration that subsection (e) would penalize “the violation of any condition” (emphasis added) explicitly contradicts the majority’s theory that subsection (e) cannot apply to court-appearance conditions. Regarding § 7559(d), the sponsor’s confirmation that it would apply to a person “released ... on condition that he appear at a specified time and place in connection with the prosecution of an offense, which could be for a trial or . . . other proceeding” (emphasis added), does not confirm the majority’s exclusion of all *570other time-and-place reporting failures as violations of subsection (d).

¶ 40. Next, we are referred to an early proposal of the 1987 bill to pass a § 7559(f) penalty of up to a year in jail for violating a “condition of release other than a condition that he or she appear at trial,” if the condition was also a “reporting condition” and the offender was convicted of an underlying offense. Those same variables and predicates in the bill were never adopted. Subsection (f) is not at issue in this case, and the final version passed into law contains none of language cited by the majority. It is no more likely that the bill reflected a commonly understood distinction between appearance at trial and other appearance conditions than it is that the bill failed because the Legislature did not agree with the distinctions now resurrected by the majority.

¶ 41. Finally, the majority’s conclusion that only failures to appear at court were intended to be penalized under § 7559(d) just does not follow from the acknowledgment between a prosecutor-lobbyist and a senator at a 1987 Senate Judiciary Committee hearing that failure to appear at court was then already “a separate criminal offense” while violations of general conditions of release were not. Criminal enforcement of the newly authorized contact, harassment, travel, and substance-abuse conditions of release certainly required the addition of subsection (e), since violations of those conditions were not subject to the sole penalty then provided under subsection (d), which was applicable only to time-and-place violations. That does not mean that enforcement of time-and-place reporting conditions, already in place before the enactment of subsection (e), was limited only to court appearances, or that reporting violations could not be prosecuted as failures to “appear at a specified time and place in connection with a prosecution” as stated by § 7559(d). Neither the lobbyist nor the senator said so, and their comments in no way contradict the trial court’s reading of the plain language of § 7559(d) to punish a violation of its specific order that defendant appear at the police department at a certain time each day. Even if the lobbyist’s statement could be construed beyond its context, we ordinarily give “little weight” to “the remarks of a single witness at a committee hearing.” Dep’t of Corr. v. Human Rights Comm’n, 2006 VT 134, ¶ 19. For the same reason, the comments of one lobbyist and one senator cannot reasonably be credited so completely as to narrow what the statute says, or plausibly be claimed to represent the understanding of a legislative majority.

*571¶ 42. We should adopt the trial court’s application of § 7559(d)’s actual language, without substituting the majority’s language “directly advance a prosecution” for the statutory phrase “in connection with a prosecution.” Petitioner’s admitted failure to appear at the police station as ordered falls within the plain meaning of § 7559(d). See State v. Ashley, 161 Vt. 65, 67, 632 A.2d 1368, 1370 (1993) (in interpreting statute, Supreme Court looks first to plain meaning of statute, and if meaning of statute is plain, statute must be enforced according to its terms). In this case, petitioner was ordered to “appear at a specified time and place” as a condition of release, and the condition was imposed “in connection with a prosecution for an offense” under § 7554(a)(1). The condition was to assure that petitioner remained in the area for his trial, and it was subject to enforcement under § 7559(d) to the same extent that such reporting conditions have been enforced since 1982, before the advent of protective conditions of release and the § 7559(e) option of a lesser-included violation-of-conditions offense.

¶ 43. The trial court’s conclusion that the charged violation was literally, and logically, penalized by § 7559(d) as a failure to abide with the “condition that he appear at a specified time and place in connection with a prosecution” should be affirmed.

See 13 V.S.A. § 7553a(b) (Cum. Supp. 1968) (charging the court only with determining conditions of release that “will reasonably assure appearance and will not constitute a danger to the public”).

Certainly this result is no more absurd than the legislative choice, confirmed in State v. Baron, 2004 VT 20, 176 Vt. 314, 848 A.2d 275, to criminalize slapping one’s child in the face as a domestic assault in violation of 13 V.S.A. § 1042, while excluding the same act from the definition of actionable child abuse under the abuse prevention statutes, 15 V.S.A. § 1101(1)(C); 33 V.S.A. § 4912(6). Observed Justice Skoglund in Baron, while questioning the logic of such a choice, “I cannot find the result so absurd as to permit a different interpretation of statutory intent.” 2004 VT 20, ¶ 19 (Skoglund, J., concurring). My Sister Skoglund, so correct in Baron, is wrong today.