Commonwealth v. Plowman

KELLER, Justice,

Dissenting.

I respectfully dissent from the majority opinion and would affirm the Court of Appeals because I subscribe to the less-than-radical notion that a bulldozer is not a “building” — certainly not in common everyday parlance, but, for the purposes of this appeal, not even under the KRS 513.010 definition of “building” that some observers have aptly characterized as “frighteningly expansive.”1 Although the majority opinion properly frames the in*51quiry before the Court as a question of law requiring a determination of the General Assembly’s intent, I disagree with the majority’s conclusion that a bulldozer constitutes a “vehicle” under KRS 513.010 and, thus, a “building” for the purposes of Kentucky’s arson statutes. I believe that the trial court and the Court of Appeals properly determined that a “vehicle” is commonly defined as a means of transporting persons or property and that both courts correctly concluded that bulldozers do not fall within the KRS 513.010 “or other ... vehicle” language because bulldozers perform functions distinct from transportation.

In the outset, I observe that I find it exceedingly difficult to track the reasoning supporting the majority’s conclusion. Although the majority holds that KRS 513.010’s “or other ... vehicle” language includes bulldozers, the majority gives little indication of how it reached this conclusion and even less indication of what the majority believes the General Assembly intended by its use of the word “vehicle.” Specifically, I observe that the majority neither defines “vehicle” or makes any effort to illuminate the meaning of that term. In fact, other than a passing reference to some undefined “plain meaning of the words” and four (4) uses of the term “expansive” or some derivation thereof, the majority opinion offers no explanation of how the language of KRS 513.010 displays legislative intent that supports the majority’s conclusion that the General Assembly intended to provide a ten (10) to twenty (20) year prison sentence for a person who sets a bulldozer ablaze with the intent to destroy it. Rather than attempt to “shadow box” with a majority interpretation no more concrete than “whatever ‘vehicle’ means, it includes bulldozers,” I will attempt to demonstrate that: (1) the majority’s ambiguous interpretation of “vehicle” is inconsistent with that word’s common and ordinary meaning; and (2) the definition of “vehicle” that excludes bulldozers utilized by the trial court and the Court of Appeals is more consistent with the word’s ordinary and contextual meaning.

While I do not question the premise that the General Assembly’s 1982 amendments reflect an expansion of the scope of the Kentucky Penal Code’s arson provisions, the result in this case turns on whether through the language in KRS 513.010— specifically, the word “vehicle” — the General Assembly intended to define “braiding” in a manner inclusive of bulldozers. And, unless bulldozers fall within the scope of the KRS 513.010 “or other ... vehicle” language, no amount of “expansive intent” will permit the conclusion that the indictment at issue alleges facts that would constitute Second-Degree Arson. Taking note of the presumption that statutes are written “using words with common and everyday meanings”2 and the legislature’s direction to construe its enactments “according to the common and approved usage of language,”3 I believe an examination of the ordinary meaning of “vehicle” leaves a gaping hole in the majority’s suggestion that its conclusion is supported by the language of KRS 513.010.4

The word “vehicle” stems from the Latin noun “vehiculum” and the Latin verb “veh-ere,” meaning “to carry.” Thus “vehicle” is defined denotatively as “a device or *52structure for transporting persons or things; a conveyance”5 or “[t]hat in or on which any person is, or may be carried ...; a means of conveyance; specifically, a means of conveyance upon land”6 or “[s]omething used as an instrument of conveyance; any conveyance used in transporting passengers or merchandise by land, water, or air.”7 In statutes addressing subjects such as the transportation of hazardous materials,8 motor vehicle licensing,9 traffic regulations,10 emissions control,11 and the transportation of alcoholic beverages,12 the Kentucky General Assembly has defined “vehicle” in accordance with its denotative meaning. And, significantly, the General Assembly also has ex-eluded construction equipment from the scope of some of its definitions of “vehicle.” 13 While I do not suggest that it would be appropriate to apply definitions from other statutes to KRS 513.010’s use of the term “vehicle,” I believe the General Assembly’s consistent use of the common and ordinary definition of “vehicle” creates a presumption that it intended the ordinary meaning when it used “vehicle” in KRS 513.010.

In contrast to a “vehicle” used to transport persons or goods, a bulldozer is “[a] heavy, driver-operated machine for clearing and grading land, usually having continuous treads and a broad hydraulic blade in front.”14 Other than pushing dirt, *53brush, and other debris around, bulldozers serve no meaningful transportation function. Thus, in the two (2) Kentucky statutory provisions specifically referencing bulldozers, the word “vehicle” does not appear, and bulldozers are instead mentioned alongside graders and earth movers in the context of capital construction projects15 and grouped with backhoes and draglines as “heavy equipment.”16 Thus, the trial court properly concluded that “[b]ased on the plain meaning of the word, it does not appear that ‘bulldozer’ falls within the definition of ‘vehicle’ when given its ordinary meaning.” The majority opinion offers no justification for its undefined, but apparently other-than-its-common-usage, interpretation of “vehicle.” In any event, however, the denotative meaning of “vehicle” compels not the result reached by the majority, but instead the opposite conclusion reached by the courts below.

Although the majority finds no need to apply the rules of statutory interpretation to KRS 513.010 because it believes that “the language of KRS 513.010 is clear and unambiguous when considered in its expansive content,”17 KRS 513.010 may not be as “unambiguous” as advertised. First, and foremost, ambiguity is inherent when people can reach different reasonable interpretations regarding the meaning of language, and the litigants in this case and the Kentucky judiciary clearly do not agree on the meaning of “vehicle” in this statute. Second, KRS Chapter 513. itself contains no definition of “vehicle,” and thus, in order to determine what the General Assembly intended by its use of that term, this Court necessarily must perform an interpretive function. Third, patent redundancies in the KRS 513.010 definition — e.g., “dwelling, hotel, commercial structure ... or other structure ... or any structure with a valid certificate of occupancy” 18 — belie the majority’s attempt to label the statute unambiguous and suggest that the definition was cobbled together without substantial attention to internal coherence. Finally, while the majority opinion cites Professors Lawson and Fortune’s treatise for another proposition, the majority’s suggestion that its “bulldozer is a building” conclusion is soundly supported by clear legislative intent suggests that the majority has overlooked those authors’ broader criticism that Kentucky’s arson provisions “are poorly written and obscure ... and have no unifying philosophy (at least none that is apparent on the surface).” 19

In the face of such ambiguity, courts commonly turn to principles of statutory construction. Because the majority opinion fails to disclose its operational definition of “vehicle,” however, I find it difficult to apply accepted standards of statutory interpretation to distinguish between the competing alternative interpretations. However, I would make two (2) observations: (1) the majority goes to great lengths — and by “great lengths” I mean repeated assertions that the statute is “unambiguous” and claims that “[t]he intent of the General Assembly is clear” — to suggest that the doctrine of ejusdem generis has no relevance to the issues at hand; and, unsurprisingly, (2) an application of ejusdem generis — a principle of statutory interpretation that preferences contextual or connotative meaning — supports the definition of the term “vehicle” utilized by the *54courts below and urged in this dissenting opinion. Under the doctrine of ejusdem generis, “broad and comprehensive expressions in an act such as, ‘and all others,’ or ‘any others,’ are usually to be restricted to persons or things of the same kind or class with those specifically named in the preceding words.”20 Thus, in KRS 513.010, all of the non-structural items defined as “buildings” — i.e. automobiles, trucks, watercraft, aircraft, trailers, sleeping cars, and railroad cars — illustrate the context of “or other ... vehicle.” Significantly, each of the specifically-named items is a “vehicle” in the ordinary meaning of that term — i.e., an instrument for transporting persons or property. Accordingly, I believe that the more reasonable interpretation of KRS 513.010’s “any other ... vehicle” language is that the language refers to “vehicle” in its plain meaning — i.e., a means of transporting persons or goods— rather than some nebulous (but other-than-ordinary) definition of “vehicle” that would include construction equipment not used to transport persons or goods. This interpretation of “vehicle” places bulldozers outside the scope of Chapter 513.21

For the reasons outlined above, I dissent from the majority opinion and would affirm the Court of Appeals.

COOPER and STUMBO, JJ., join this dissenting opinion.

. ROBERT G. LAWSON & WILLIAM H. FORTUNE, KENTUCKY CRIMINAL LAW, § 12 — 6(b)(1) at 478 (LEXIS 1998).

. KRS 446.015.

. KRS 446.080(4). See also Kentucky Unemployment Ins. Co. v. Jones, Ky.App., 809 S.W.2d 715, 716 (1991) ("When there is no specific statutory definition, words of a statute shall be construed according to their common and approved usage.”).

. Majority Opinion, 86 S.W.3d 47, 50 (2002) ("After considering ... the plain meaning of the words .... ”).

. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.2000) (emphasis added).

. WEBSTER'S REVISED UNABRIDGED DICTIONARY (1988).

. BLACK'S LAW DICTIONARY (7⅛ ed.1999) (emphasis added).

. KRS 174.405(6) (" ‘Vehicle’ means any device or contrivance for carrying or conveying persons, property, or substances, including conveyance by highways or by airway.”).

. KRS 186.010(8)(b) (" ‘[Vjehicle’ means every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human and animal power or used exclusively upon stationary rails or tracks, or which derives its power from overhead rails.”).

. KRS 189.010(19)(a) (" ‘Vehicle’ includes: 1. All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth; and 2. All vehicles passing over or upon the highways.”).

. KRS 224.20-710(7) (" ‘Vehicle’ means any automobile or truck registered in this Commonwealth ... and used upon the public highways of the Commonwealth for the purpose of transporting persons or property.”).

. KRS 241.010(45) (" ‘Vehicle’ means any device or animal used to carry, convey, transport, or otherwise move alcoholic beverages or any products, equipment or appurtenances used to manufacture, bottle, or sell these beverages.”).

. See KRS 186.010(8)(a):

‘‘Vehicle” as used in KRS 186.020 to 186.260, includes all agencies for the transportation of persons or property over or upon the public highways of this Commonwealth and all vehicles passing over or upon said highways, excepting road rollers, road graders, farm tractors, vehicles on which power shovels are mounted, such other construction equipment customarily used only on the site of construction and which is not practical for the transportation of persons or property upon the highways, such vehicles as travel exclusively upon rails, and such vehicles as are propelled by electric power obtained from overhead wires while being operated within any municipality or where said vehicles do not travel more than five (5) miles beyond the city limit of any municipality.

Id. (emphasis added). See also KRS 189.010(19)(b).

. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4⅛ ed.2000).

. KRS 45.750(3)(d).

. KRS 224.16 — 070(2)(b).

. Majority Opinion, supra note-at 49.

. KRS 513.010.

. LAWSON & FORTUNE, supra note 1 at § 12 — 6(a)(3) at 477.

. City of Lexington v. Edgerton, 289 Ky. 815, 159 S.W.2d 1015, 1017 (1941) (emphasis in original) (quoting Vansant v. Commonwealth, 189 Ky. 1, 224 S.W. 367, 371 (1920)).

. Of course, this conclusion does not mean that Appellant escapes criminal liability if he engaged in the alleged conduct. Although the indictment against Appellant does not allege facts that would, if proven, constitute Second-Degree Arson, I would observe, as the Court of Appeals did, that those facts would constitute Criminal Mischief under KRS Chapter 512.