Raynes v. Rogers

*522Burgess, J.,

¶ 16. dissenting. Just to be clear: the majority holds that when an ill-meaning relative, or past or present disgruntled lover, dating partner, roommate or housemate enters your home and, in front of you, grabs your property and runs off with it, or even destroys it, you may not lawfully resist. If you do, says the majority, you are liable to be branded an abuser by the court and subjected to a relief-from-abuse order. This flies in the face of common sense and the centuries old recognition of our right to defend property at common law.3

¶ 17. Without any express revocation of that common-law rule by the Legislature, the majority nevertheless reads the Abuse Prevention Act to enjoin anyone who would physically oppose the wrongful taking of her property by a “family or household member,” a class so broadly defined as to include all relatives and any and all past and current roommates, co-occupants, dates and sexual partners. 15 V.S.A. § 1101(1), (2). Rather than allowing the use of reasonable force against tortious interference with our personal property as a defense to a claim for relief from abuse, the majority understands the Legislature intended for us to just bleat like sheep. I respectfully dissent from such an absurd application of the statute.

¶ 18. The injustice resulting from this interpretation is particularly manifest when one considers its application to our related rights of self-defense and defense of others. Would the majority subject us to a relief-from-abuse order for defending ourselves and our dear ones from attack? Apparently so. As with defense of property, these rights are also long established at common law,4 but are not acknowledged in the Abuse Prevention Act. Therefore, according to the majority’s reasoning, we must passively, albeit painfully, yield to assault by family or household members lest we *523be judicially branded an abuser and issued a restraining order for fighting back.5

¶ 19. The majority’s concern that we not lend credence to a myth of provocation in domestic violence is entirely misplaced here, since plaintiffs own undisputed testimony presented the facts necessary for the defense.6 According to her version of events, she took her ex-boyfriend’s dog without permission and ran with it into her car, where, despite defendant’s demand that she let the dog go, she refused to give up the dog even when defendant pulled her hair. Plaintiff testified further that she still would not relinquish the dog until a blow by defendant stunned her into releasing it, at which point the owner desisted. Thus, plaintiff described herself as committing the tort of conversion, see Economou v. Carpenter, 124 Vt. 451, 454, 207 A.2d 241, 243 (1965) (defining conversion as an overt exercise of dominion over another’s property “in exclusion and defiance of the owner’s right to possession although he does nothing more than detain the property against the rightful owner’s demand”), and described defendant as employing the force necessary to regain his dog. See State v. Downer, 8 Vt. 424, 428 (1836) (reiterating that resort to *524force in defense of property is limited to “such force as may be necessary”).

¶ 20. Without addressing defendant’s claim, the family court summarily entered a finding of abuse based only on the fact that defendant “caused physical harm” to plaintiff. Defendant readily admitted injuring plaintiff, but asserted that his actions were justified by her refusal to give up his dog. Contrary to the majority’s understanding, plaintiffs proof of a prima facie case for abuse did not automatically preclude a valid defense, but shifted the burden to defendant to prove defense of property. See Vermont Structural Steel Corp. v. Brickman, 126 Vt. 520, 524, 236 A.2d 658, 661 (1967) (after plaintiff establishes a prima facie case, burden shifts to defendants to prove their defense). Plaintiffs own testimony was sufficient for that purpose. It was error to reject the defense out of hand, and the matter should be remanded for a factual and legal determination on defendant’s claim.7

¶ 21. It has long been “unquestionable]” that a person in possession of property may then and there fend off' “a purely wrongful taking or conversion,” and that “if one takes another’s property from his possession, without right and against his will, the owner . . . may protect his possession, or retake the property, by the use of necessary force.” Stanley v. Payne, 78 Vt. 235, 240-41, 62 A. 495, 497 (1905); see also Barrows v. Fassett, 36 Vt. 625, 628-30 (1864) (holding that property just taken from one’s lawful possession may be immediately regained “with a reasonable degree of force,” that being “no greater force than was justifiable and necessary for the protection of his possession and in self-defence”).8 These principles have been the law of Vermont since its days as an independent republic. See 1 V.S.A. §271, first enacted as R. 1787, p. 30 (providing that: “[s]o much of the common law of England as is applicable to the local situation and circumstances and is not repugnant to the constitution or laws *525shall be laws in this state and courts shall take notice thereof and govern themselves accordingly”).

¶ 22. Defense of property is instinctive. That we know from the time we are toddlers that we need not tolerate an unrighteous taking of our things by another is reflected in the Vermont Constitution’s recognition that “possessing and protecting property” are among our “natural, inherent, and unalienable rights.” Vt. Const., Ch. I, Art. 1. While the Legislature retains the prerogative to alter or abrogate the common law, “the rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language.” E.B. & A.C. Whiting Co. v. City of Burlington, 106 Vt. 446, 464, 175 A. 85, 44 (1934).

¶ 23. The majority posits that a claim of defense of property is not available in response to an action for a relief-from-abuse order under the Abuse Prevention Act, but that is not what the statute says. An action for relief from abuse may be entirely statutory, but the statute professes no such “clear and unambiguous” revocation of the common-law rule. Id. Nor is the principle of defense of property in the slightest way incompatible or inconsistent with the legislative goal of preventing abuse of one relative or household member by another. See State v. Hazelton, 2006 VT 121, ¶ 29, 181 Vt. 118, 915 A.2d 224 (“The common law is changed by statute only if the statute overturns the common law in clear and unambiguous language, or if the statute is clearly inconsistent with the common law . . . .”) (citation omitted).

¶ 24. As the majority points out, this remedial legislation should be liberally construed to accomplish its purpose of providing protection to victims of abuse, but defense of property and self-defense cannot fall under any rational definition of “abuse.” Nor, as imagined by the majority, is the judicial resolution of often-heard allegations of blame an impediment to the relief afforded by the statute. Contrary to the majority’s characterization, defense of property confuses no apples with oranges in the context of relief-from-abuse proceedings. If one is injured while unlawfully meddling or attempting to abscond with another’s property, he has no “need of legal protection,” as cast by the majority. Ante, ¶ 10. On the other hand, if one claims, but fails to prove, defense of property to justify physical aggression, a restraining order is warranted. These are not overly burdensome or complicated inquiries, but are typical of disputes handled by the trial court.

*526¶25. This Court ordinarily avoids construing a statute in an absurd manner. See State v. Longley, 2007 VT 101, ¶ 10, 182 Vt. 452, 939 A.2d 1028 (noting that a “presumption obtains against a [statutory] construction that would lead to absurd results”) (citation omitted). On this occasion, however, the majority would read the Act to reduce us to waiting for the police or to summoning lawyers while a jilted lover, dissatisfied date or malicious housemate drives away with our car, smashes our television, vandalizes our home or harms our pets. It is ridiculous to imagine that the Legislature intended to subject persons to an injunction for defending against the wrongful taking or damage of their possessions by family or household members. Even though the statutory term “abuse,” defined as “[attempting to cause or causing physical harm” or threatening “imminent serious physical harm,” 15 V.S.A. § 1101(1)(A), (B), does not expressly allow for protection of property, it is equally absurd to conclude that the Legislature meant to treat defense of property as an abuse to be curtailed. Concluding otherwise, absent any express repeal of the common-law rule in this regard, would also countenance repeal by doubtful implication, an approach not favored by our law. City of Burlington, 106 Vt. at 464, 175 A. at 44.

¶ 26. The majority’s reading of the statute renders our property and our persons literally defenseless against predation by relatives, past and present cohabitants, domestic partners and sexual intimates. Moreover, the majority’s understanding must also suppose a legislative intent to single out and sacrifice the sanctity of property and persons of family and households. While leaving other citizens free to defend themselves, their property and their loved ones without sanction, the majority’s construction denies these rights as between family and household members. This distinction, required under the majority’s analysis, is patently irrational and unfair. Such a “construction as this one, leading to a most unjust and unreasonable result, cannot be interpolated by this Court.” Swanton Village v. Town of Highgate, 131 Vt. 318, 324, 305 A.2d 586, 590 (1973). I dissent from doing so and am authorized to state that Justice Skoglund joins in this dissent.

See 3 W. Blackstone, Commentaries *121 (memorializing the common-law rule that “in defence of my goods or possession, if a man endeavours to deprive me of them I may justify laying hands upon him to prevent him; and in case he persists with violence, I may proceed to beat him away”).

See Howland v. Day, 56 Vt. 318, 319 (1883) (upholding as correct a jury instruction that “[w]hen one person is assaulted unlawfully by another, the person assaulted has the right to defend himself, and he has a right to do so to an extent that will make the defence effective.”); see also Mellen v. Thompson, 32 Vt. 407, 410 (1859) (holding that “every man is legally justified in the reasonable use of force for the prevention of unlawful violence to another’s person”).

Under the Act, a plaintiff must first prove an initial “abuse” as a necessary-predicate to an immediate or ongoing “danger of further abuse” required for a temporary or final relief from abuse order. 15 V.S.A. §§ 1104(a) and 1103(c) (emphasis added). The majority reads the statute to mean that a “defendant’s actions . . . entirely defensive,” can constitute the predicate “abuse,” ante, ¶ 11 n.l, while positing that no defendant is at risk of a restraining order without a threat of “future abuse.” Id. But when could it be said that one who defends herself and her own against attack once would not do so again and thus, according to the majority, present a “danger of further abuse?” Or, following this logic further, having once defended against attack, a victim may not physically resist again or her successive defense, as perceived by the majority, will present a serial “abuse” and thus a threat of “further abuse” under the statute. Either way, the majority’s construction is unlikely to be a reflection of legislative intent.

Claims of provocation are best decided case by case. Common experience in family and district court demonstrates that relatives, roommates, housemates, dates and lovers are, in fact, quite capable of unjustified aggression, despite the majority’s characterization of that reality as mythical.

In any event, plaintiff’s testimony obviates the majority’s worry that legitimate abuse claims could be sidetracked by contests over title to property. It was undisputed that defendant owned the dog and plaintiff did not. Notwithstanding the majority’s suggestion that an aggressor’s domination over another’s property might somehow deter or demean a victim’s claim of title, ante, ¶ 13 n.2, no law favors physical control of property over testimony of contrary ownership. In any event, such competing claims are resolved daily in the trial courts.

Absent any culpability on the part of defendant for his exercise of force to recover his dog, it is unclear that plaintiff could satisfy her burden to prove that defendant unlawfully “abused” her in the first instance. Without such an initial instance of abuse, there may be no predicate “abuse” in evidence to make defendant’s alleged stalking afterwards a “further abuse” as required for a final relief-from-abuse order under 15 V.S.A. § 1103(c) (emphasis added).

Cf. Bowman v. Brown, 55 Vt. 184, 185 (1882) (stating the equally ancient rule that when one’s property is discovered already in the possession of another, the owner may not break the peace and “‘fight himself’ into legal possession,” but must resort to legal process to regain possession).