State v. Frechette

STATE_V_FRECHETTE.92-562; 161 Vt. 233; 637 A.2d 1080

[Filed 27-Dec-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-652


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Michael Frechette                            October Term, 1993


 Linda Levitt, J.

 Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
   General, Montpelier, for plaintiff-appellant

 Robert H. Anderson, Colchester, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   The State of Vermont appeals the district court's
 dismissal of an information filed against defendant Michael Frechette for
 alleged violations of 13 V.S.A. {{ 2102, 2143(a).  We affirm.
      Defendant is a director of the Regular Veterans Association Post #1,
 Inc. (RVA), a not-for-profit organization.  He operated bingo nights for the
 RVA on three separate occasions in November 1992, and paid non-members to
 assist in running the games.  Games of chance are permitted under 13 V.S.A.
 { 2143(a), which provides an exception to the general prohibition against
 gambling in Vermont established in { 2102. (FN1) Section 2143(a) reads, in

 

 relevant part:  "Notwithstanding the provisions of this chapter, a nonprofit
 organization may organize and execute, and an individual may participate in,
 lotteries, raffles or other games of chance for the purpose of raising funds
 to be used in charitable undertakings."  13 V.S.A. { 2143(a).  Intentional
 violation of { 2143(a) carries a mandatory criminal fine of up to $500, id.
 { 2143(e)(1), in addition to the criminal penalties established in { 2102.
 Defendant was charged with six counts of illegal gambling in violation of 13
 V.S.A. {{ 2102 and 2143(a).
      According to the State, the RVA exceeded the scope of its power to
 "organize and execute" under { 2143(a) by paying non-members for their
 assistance in operating the bingo games.  Defendant moved to dismiss the
 charges, and the district court granted the motion.  The court held
 { 2143(a) void for vagueness because the statute does not adequately
 distinguish between permissible and impermissible overhead expenses
 associated with the running of games by nonprofit organizations for charity.
 The court postponed entry of judgment pending this appeal.
      At issue is whether { 2143(a) prohibits a nonprofit organization from
 paying non-member employees to assist in running bingo operations.  As a
 penal statute, { 2143(a) must be interpreted in a manner most favorable to
 the accused, but not so strictly as to defeat the legislative purpose in
 enacting the law or to produce absurd consequences.  See State v. Sidway,
 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981).  This rule of construction
 "guard[s] against the creation of criminal offenses outside the

 

 contemplation of the legislature under the guise of 'judicial
 construction.'"  State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004
 (1989) (quoting People v. Vercelletto, 514 N.Y.S.2d 177, 178 (Ulster Cty.
 Ct. (1987)).  With this in mind, we consider the statute as a whole,
 including its subject matter, effects and consequences, to ascertain the
 legislative intent.  State v. Teachout, 142 Vt. 69, 72, 451 A.2d 819, 820
 (1982).
      The State argues that { 2143(a) creates only a very narrow exception to
 the general prohibition on gambling established in { 2102, so that only
 members may "organize and execute" games of chance.  Thus, payment of
 salaries to non-members is not an acceptable cost of running the games.  The
 State contends that the exception would swallow the rule if non-members
 could realize a personal gain out of gaming proceeds, thereby contravening
 the legislative intent to forbid any personal gain from gambling.
 Therefore, the prosecution asserts, this Court would frustrate the
 legislative will if it created categories of permissible expenses within the
 ambit of organization and execution under { 2143(a).
      At the same time, however, the State conceded in the hearing on the
 motion to dismiss that situations may exist in which nonprofit organizations
 may use gaming revenues to defray certain overhead expenses, such as hall
 rental and advertising.  The State insisted that, as a practical matter,
 only the most egregious claims of "expenses" to be offset by gaming proceeds
 would be pursued in the exercise of prosecutorial discretion.  In effect,
 then, the prosecution would draw the line between acceptable and
 unacceptable expenses under { 2143(a) -- the same line that the State urges
 the judiciary not to draw.  We agree that this Court must refrain from line-

 

 drawing in this case, but we cannot support the contention that the State
 can define violations of { 2143(a) through prosecutorial discretion.  See
 State v. Cantrell, 151 Vt. 130, 139, 558 A.2d 639, 645 (1989) (Allen, C.J.,
 dissenting).
      The statutory language says nothing about payment of expenses, for
 salaries or otherwise, associated with charitable gambling; { 2143(a) simply
 permits nonprofits to "organize and execute" these games.  Obviously, the
 construction most favorable to nonprofits such as the RVA would grant the
 organizations complete discretion in operating their games, but this could
 produce consequences contrary to the intended general prohibition on games
 of chance for profit.  See Sidway, 139 Vt. at 484, 431 A.2d  at 1239.   We
 believe the Legislature intended to create a limited exception to this
 prohibition, but failed to describe its contours with enough specificity to
 inform nonprofit organizations of what expenditures fall under the rubric
 of organization and execution.  To be enforceable, criminal statutes such as
 {{ 2102 and 2143 must "'define a criminal offense with sufficient certainty
 so as to inform a person of ordinary intelligence of conduct which is
 proscribed, and such that arbitrary and discriminatory enforcement is not
 encouraged.'"  State v. DeLaBruere, 154 Vt. 237, 271, 577 A.2d 254, 272
 (1990) (quoting Cantrell, 151 Vt. at 133, 558 A.2d at 641).
      We hold, therefore, that in the context of determining permissible
 expenses such as salaries, { 2143(a) is too vague to be fairly enforced.  We
 acknowledge that our decision may create the potential for nonprofit
 organizations to flout the State's general prohibition against gaming under
 the guise of charitable purposes.  We also recognize the need for a policy
 determination of what qualifies as an acceptable expenditure under the

 

 { 2143(a) exception.  But such policy decisions are for the Legislature, not
 the judiciary.  Therefore, we affirm the trial court's order dismissing all
 counts against defendant.
      Affirmed; cause dismissed with prejudice.

                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice



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                              Footnotes

             A person who sells or disposes of property by way of chance
        or, as an inducement to the sale of property, gives the purchaser
        or any other person other property to be drawn by way of chance
        or lottery shall be imprisoned not more than one year or fined
        not more than $200.00, or both.
13 V.S.A. { 2102.