STATE_V_MADISON.95-046; 163 Vt 360; 658 A.2d 536
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.
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Washington Circuit
Jason Madison February Term, 1995
David Suntag, J.
Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
General, Montpelier, for plaintiff-appellee
Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant
Robert Appel, Defender General, Montpelier, amicus curiae
PRESENT: Allen, C.J. (FN1), Gibson, Dooley, Morse and Johnson, JJ.
Per Curiam. Today, we consider whether use of the term "review de novo"
in the recently approved bail amendment to the Vermont Constitution (Proposal
7) and related legislation, 13 V.S.A. 7556(d), requires a justice of this
Court, when reviewing a district court's decision denying bail, to conduct a
new evidentiary hearing without considering the record created in the
district court. We conclude that the bail amendment, which allows the
district court to deny bail to a person charged with a violent felony if
evidence of guilt is great and the accused poses a substantial threat of
violence to another person, does not authorize two full evidentiary hearings,
as urged by defendant. Our conclusion rests upon the meaning of the term
"review de novo" as a legal term of art.
In adopting Proposal 7, the voters of Vermont expressed their desire to
permit pretrial detention, in appropriate circumstances, of those accused of
violent crimes so as to prevent further harm to the victims of the crimes and
to others. According to defendant, this expansion of the State's authority
to hold a person without bail demands that the person be accorded a full
evidentiary hearing before the district court and, if the district court
denies bail, a second full evidentiary hearing as soon as possible before a
justice of this Court. In defendant's view, the hearing before a justice
must proceed as if the district court hearing had never occurred.
Consequently, any and all witnesses or deponents, including traumatized
victims offering sensitive testimony, would be required to repeat their
previous testimony at the second hearing, which is subject to further review
by a three-member panel of this Court. Vt. Const. ch. II, 40. Apart from
our conclusion, discussed in detail below, that such a procedure is not
called for by the language of the constitution and the accompanying
legislation, we believe that the negative aspects of requiring a second full
evidentiary hearing -- the probable trauma to victims, the inevitable waste
of scarce judicial resources, and the resultant delay in the bail decision --
outweigh the questionable value of the procedure.
In contrast, applying the plain meaning of the term "review de novo," as
we have done, minimizes those negative aspects while retaining virtually the
same standard of review. Under this procedure, a single justice must
consider whether to deny bail without giving the usual deference to the
district court's bail decision. Cf. 13 V.S.A. 7556(b) (district court's
order detaining person pending trial "shall be affirmed if it is supported by
the proceedings below"). The justice must review the record created in the
district court, including the transcript or videotape, and make an
independent determination based on that record. Significantly, the reviewing
justice may also consider additional evidence or may require witnesses from
the district court proceeding to testify again so long as the party seeking
admission of the additional evidence shows good cause for doing so.
The only difference between this procedure and the procedure advocated
by defendant is
that the latter would require all witnesses or deponents to repeat their
testimony, regardless of the need. Of course, without a second full
evidentiary hearing, defendants would not be able to place traumatized
victims on the stand a second time on the issue of bail in the hope that they
will recant previous testimony or that they will make statements inconsistent
with their earlier testimony. Neither the language of the bail amendment nor
due process, however, requires a procedure that provides such opportunities.
In sum, the procedure outlined herein preserves independent review of
decisions denying bail while providing other advantages. First, it protects
witnesses, often crime victims, from being forced needlessly to repeat
traumatic or sensitive testimony. Second, it increases the likelihood that
incarcerated defendants will obtain a speedy bail decision. Third, it
prevents the waste of scarce judicial resources and assures that the district
court proceedings do not become a sham, serving only as a forum for
defendants to feel out weaknesses in the prosecutor's case. Long ago, when de
novo trials were common, one of the great legal reformers of this century
pointed out the folly of a system in which two courts conducted separate
evidentiary hearings of the same matter:
The usual American plan of trial in the first instance by a
lay magistrate, followed, since he is not trusted, by a retrial to a
jury in a higher court on appeal, and then followed by review in an
appellate court, is indefensible. There should be but one trial, and
but one review of that trial.
Roscoe Pound, The Administration of Justice in the Modern City, 26 Harv. L.
Rev. 302 327 (1913); see Susan Carbon, Larry Berkson, & Judy Rosenbaum, Court
Reform in the Twentieth Century: A Critique of the Court Unification
Controversy, 27 Emory L.J. 559, 565 (1978) (in nonunified court systems,
appeals are sometimes tried de novo instead of on the record, "effectively
relegating the first trial to a status no greater than a mere discovery
I. The Law
By vote of the electorate on November 8, 1994, Chapter II, Section 40 of
the Vermont Constitution was amended to provide the following exception to
the general rule that persons are
bailable by sufficient sureties:
(2) A person accused of a felony, an element of which
involves an act of violence against another person, may be held
without bail when the evidence of guilt is great and the court finds,
based upon clear and convincing evidence, that the person's release
poses a substantial threat of physical violence to any person and
that no condition or combination of conditions of release will
reasonably prevent the physical violence. A person held without
bail prior to trial under this paragraph shall be entitled to review de
novo by a single justice of the Supreme Court forthwith.
(3) . . . .
A person held without bail prior to trial shall be entitled to
review of that determination by a panel of three Supreme Court
justices within seven days after bail is denied.
The bail amendment's accompanying statute, Act 143, took effect upon the
governor's certification of the constitutional amendment on December 13,
1994. Act 143 tracks the language of Proposal 7 in adding to and amending
Chapter 229 of Title 13:
7553a. Acts of violence; denial of release on bail
A person charged with an offense that is a felony, an
element of which involves an act of violence against another
person, may be held without bail when the evidence of guilt is
great and the court finds, based upon clear and convincing
evidence, that the person's release poses a substantial threat to any
person and that no condition or combination of conditions of
release will reasonably prevent the physical violence.
7556. Appeal from conditions of release
. . . .
(d) A person held without bail under section 7553a of this
title prior to trial shall be entitled to review de novo by a single
justice of the supreme court forthwith.
(e) A person held without bail prior to trial shall be entitled
to review of that determination by a panel of three supreme court
justices within seven days after bail is denied.
On December 15, 1994, following adoption of the bail amendment, this
promulgated an emergency amendment to V.R.A.P. 9, which provides in relevant
part, as follows:
(b) Review of Denial of Release.
(1) Denial of release under 13 V.S.A. 7553a.
. . . .
(B) Review shall be requested by application to the
Supreme Court with reasonable notice to the state. The person
seeking review shall furnish to the Court the record of the
proceedings before the judicial officer. . . . The reviewing justice
shall set the time and place of the hearing, which may be
conducted by telephone.
(C) Review shall be de novo on the record presented by the
parties and such additional evidence as is authorized by the
reviewing justice for good cause shown. A party who seeks to
offer additional evidence shall present to the reviewing justice a
written specification of the evidence sought to be offered at least
24 hours prior to the time set for the hearing.
On January 25, 1995, the district court applied the new law in denying
bail to defendant, who was charged with two counts of sexual assault, neither
carrying a life sentence. Defendant sought review de novo by a single
justice of this Court and immediately challenged the procedure set forth in
V.R.A.P. 9(b)(1)(C). The reviewing justice referred the issue to the full
Court.(FN2) Defendant argues that Rule 9(b)(1)(C) violates the bail amendment
and 7556(d) by permitting a single justice to review denial of bail based
solely on the record made at the initial proceeding before the district
court. According to defendant, in adopting the term "review de novo," the
people of Vermont and the legislature intended to provide defendants with a
second full evidentiary hearing before a justice of this Court. Further, in
defendant's view, the rule violates his right to due process by not affording
him sufficient procedural safeguards before permitting bail to be denied
II. The Meaning of "Review De Novo"
Defendant and amicus Defender General argue that the interpretation of
Proposal 7 contained in Rule 9 thwarts the will of the people of Vermont and
the legislature by not according defendant a hearing before a justice as if
the first hearing in district court had never happened.
As an initial matter, we address defendant's argument that the intent of
the legislature in amending the bail statute, not the intent of the voters in
adopting Proposal 7, must control our decision. Citing State v. Lambert, 145
Vt. 315, 487 A.2d 172 (1985), defendant contends that this Court must provide
him the process intended by the legislature because the constitutional
amendment is not self-executing. Amicus expands on this contention, arguing
that if the legislature had not passed Act 143, the district court would not
have had any authority to hold defendant without bail solely on the basis of
the bail amendment. We reject this argument.
In Lambert, we considered whether a 1982 amendment to the Vermont
Constitution impliedly overruled the existing bail statute. The
constitutional amendment provided that persons committed for offenses
punishable by death or life imprisonment, when evidence of guilt was great,
were not entitled to bail as a matter of right. Lambert, 145 Vt. at 316, 487 A.2d at 172. The defendant was charged with second-degree murder, which
carried a maximum sentence of life imprisonment. The district court
determined that the evidence of guilt was great, and applying the bail
amendment, exercised its discretion to deny bail. This Court held that the
district court erred in not considering the bail statute, which provided that
any person charged with an offense not punishable by death had to be released
pending trial unless the court determined that release would not reasonably
assure the person's appearance or would endanger the public. Id. at 317-18,
487 A.2d at 173.
Noting that the bail statute was "consonant with" the constitution because it
neither exceeded any constitutional limitations nor infringed on any
constitutional rights, this Court held that the defendant was entitled to a
new bail hearing to determine her eligibility under the statute. Id. at 318,
487 A.2d at 173.
Our holding in Lambert does not support the argument that the 1994 bail
amendment required an enabling statute to give it force. The amendment
affirmatively declares that a person accused of a violent felony may be held
without bail if certain specific criteria are met. The disputed language --
review de novo -- is exactly the same in the statute and the constitution.
The legislature's decision to track precisely the language of Proposal 7
indicates that it intended Act 143, which took effect upon the adoption of
Proposal 7, to have the same meaning as the bail amendment. Even if we
assume the legislature could enact a statute inconsistent with the detailed
standard of the constitutional amendment because the statute afforded
defendants greater procedural safeguards than those contained in the
amendment,(FN3) there is no indication that the legislature intended to do
that here. Accordingly, in determining the meaning of the term "review de
novo," we look primarily to the intent of the voters in adopting the
amendment, but we also consider the intent of the legislature in adopting Act
A. Plain Meaning
Whether we consider the intent of the constitutional amendment or the
statute, we first look to the plain meaning of the language in question. See
State v. International Collection Serv., Inc., 156 Vt. 540, 542, 594 A.2d 426, 428 (1991) (although overall aim is to give effect to intent of
legislature, we must look first to plain meaning of statute); State v.
Yudichak, 147 Vt. 418, 420, 519 A.2d 1150, 1151 (1986) (in giving effect to
intent of legislature, we presume that plain, ordinary meaning of statutory
language is intended); see also Martin v. State, 410 S.E.2d 474, 476 (N.C.
1991) (in determining will of people with respect to constitutional
amendment, court must give meaning to plain language of amendment). Absent
the existence of an official voter's pamphlet that indicates the meaning of
the language at issue, see City of Tacoma v. Taxpayers of City of Tacoma, 743 P.2d 793, 797 (Wash. 1987), the "most obvious
way to divine what meaning `the great mass of the people themselves would
give' any word or phrase would be the common meaning of the language used."
Walker v. Wolverine Fabricating & Mfg. Co., 391 N.W.2d 296, 300 (Mich. 1986).
Because the term "review de novo" is a legal term of art, however,
determining the average voter's understanding of the language would involve
unrealistic speculation; consequently, we look to judicial decisions and
legal commentaries to determine if there is a consensus regarding the meaning
of the term. Id.
Our research indicates that most commentators and courts, including this
Court, have distinguished between the terms "hearing de novo" or "trial de
novo" and the term "review de novo." This Court directly addressed the
distinction between these terms in Chioffi v. Winooski Zoning Bd., 151 Vt. 9,
11 n.2, 556 A.2d 103, 105 n.2 (1989). In that case, we defined the term "de
novo trial," which is contained in 24 V.S.A. 4472(a) to describe a zoning
hearing before the superior court, as "`one where the case is heard as though
no action whatever had been held prior thereto.'" Id. at 11, 556 A.2d at 105
(quoting In re Poole, 136 Vt. 242, 245, 388 A.2d 422, 424 (1978)). We
explicitly noted that "`de novo review,' a procedure that might not require a
retrial or extensive judicial record making, is not the standard required by
the statute." Id. at 11 n.2, 556 A.2d at 105 n.2. Notwithstanding
defendant's attempts to distinguish Chioffi, that case indicates that before
Proposal 7 went to the voters we recognized a clear distinction between the
terms "trial de novo" or "hearing de novo" and the term "review de novo."
Defendant cites several Vermont cases in support of his claim that, in
Vermont jurisprudence, the term "de novo" means a completely new evidentiary
hearing with no consideration of the record of any previous hearing. These
cases, which may be divided into two categories, do not support defendant's
claim. The first category includes cases that define the terms "de novo
trial" or "de novo hearing" or that define the term "de novo" in isolation.
See, e.g., Poole, 136 Vt. at 245, 388 A.2d at 424 (term "de novo trial" in 24
V.S.A. 4472(a) and 4475 means "de novo hearing . . . where the case is
heard as though no action whatever had been held prior thereto"); In re
Wheelock, 130 Vt. 136, 140, 287 A.2d 569, 572 (1972) (de novo
characteristic of de novo proceeding relates to taking of all testimony anew
and disregarding initial proceeding); In re Automobile Ins. Rates, 128 Vt.
73, 77, 258 A.2d 826, 829 (1969) (trial de novo in appellate tribunal
designates trial as though no action whatever had been instituted in court
The second category includes cases in which this Court, in passing, used
the words "review de novo" to describe a de novo hearing. In none of these
cases, however, were we using those words as a term of art or were we
interpreting the language of any rule, statute, or constitutional provision.
See, e.g., In re Bushey-Combs, 160 Vt. 326, 329, 628 A.2d 541, 543 (1993)
(holding that Human Services Board has authority to review de novo evidence
of abuse in conducting evidentiary "fair hearing"); Vermont Baptist
Convention v. Burlington Zoning Bd., 159 Vt. 28, 29, 613 A.2d 710, 711 (1992)
(stating that plaintiff appealed to superior court for de novo review of
zoning board decision); In re Maple Tree Place, 156 Vt. 494, 499, 594 A.2d 404, 407 (1991) (using words "de novo review" in describing holding in
None of these cases suggest that there is something inherent in the term
"de novo" that, irrespective of the words with which it is associated,
signifies a completely new evidentiary hearing without regard to any previous
hearing. Cf. 5 V.S.A. 1017 (allowing person aggrieved by decision of
board of adjustment to petition for "de novo review" of decision based on
grounds specified in petition). Indeed, the leading legal dictionary defines
"de novo" as "anew" and "afresh," but defines "de novo trial" as trying a
matter anew "as if it had not been heard before and as if no decision had
been previously rendered." Black's Law Dictionary 392 (5th ed. 1979).
Similarly, the dictionary defines "hearing de novo" as a hearing
"contemplating an entire trial in same manner in which matter was originally
heard and review of previous hearing." Id. at 649. In contrast, although
there is no definition of the term "review de novo," the word "review" is
defined as a "consideration for purposes of correction." Id. at 1186.
While some courts suggest that the term "trial de novo" is ambiguous as
to whether it demands a full evidentiary hearing without regard to any prior
hearing, courts and commentators
agree that the term "review de novo" does not require a second full-blown
evidentiary hearing. See Asevedo v. Anchorage School Dist., 843 P.2d 1209,
1209 (Alaska 1992) (while term "de novo trial" sometimes means "de novo
review" on record, most common meaning of term contemplates new evidentiary
hearing and original fact-finding); Walker, 391 N.W.2d at 299, 301, 308
(phrase "appeals . . . tried de novo" is ambiguous as to whether it means new
hearing on previous record or new trial based on production of new evidence;
however, statute providing that orders of Water Resource Commission may be
"reviewed de novo" clearly contemplates review on the record rather than new
evidentiary hearing); 2 C. Koch, Jr., Administrative Law and Practice 9.3,
at 88 (Supp. 1995) ("de novo judicial review" of state agency action
"contemplates an independent determination based on information compiled by
agency"); Note, De Novo Judicial Review of Administrative Agency Factual
Determinations Implicating Constitutional Rights, 88 Colum. L. Rev. 1483,
1495 (1988) (de novo review generally does not require new evidentiary
At most, the term "review de novo" contemplates a nondeferential review
that generally relies on, but is not restricted to the record -- precisely
the review we have set forth in Rule 9. See Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987) (in statute allowing civil suits based on agency
decision not to amend individual record and requiring district court to
"determine the matter de novo," term "de novo" meant, "as it ordinarily
does," independent determination in which court is not limited to
administrative record and need not defer to agency decision); Frye v. Memphis
State University, 671 S.W.2d 467, 469 (Tenn. 1984) (statute providing for "de
novo judicial review" of administrative decision discharging tenured faculty
member of state university means new hearing in chancery court based upon
administrative record and additional evidence that is relevant and not
duplicative of earlier testimony).
Defendant contends, however, that the term "review de novo" has a
restricted meaning only in the administrative law context as the result of
constitutional constraints. Cf. Crouch v. Police Merit Bd., 773 S.W.2d 461,
463 (Ky. 1988) (holding that, because of separation-of-powers
constraints, statutory language giving discharged public employee right to
"be tried anew" in circuit court after agency hearing did not permit
appellate court judge to hear testimony and determine credibility of
witnesses). The term "review de novo," however, is commonly used to describe
the nondeferential on-the-record standard of review that appellate courts
apply to lower court determinations regarding questions of law or mixed
questions of law and fact. See United States v. Howard, 828 F.2d 552, 554
(9th Cir. 1987) ("We review de novo motions to suppress, probable cause,
exigent circumstances and the overall lawfulness of a search."); United
States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986) ("A claim of ineffective
assistance of counsel is a mixed question of law that is reviewed de novo.");
Davis v. United States, 564 A.2d 31, 35-36 (D.C. 1989) (when matter under
review is question of law or mixed question of law, appellate court applies
de novo review, which allows it, based on original appraisal of record, to
reach different result from trial court without deference to that court's
Similarly, the term "de novo determination" is used to describe the
independent on-the- record review that federal courts give to the
recommendations of magistrates. See United States v. Raddatz, 447 U.S. 667,
676 (1980) (in light of statute's use of term "de novo determination" rather
than term "de novo hearing," district court need not rehear contested
testimony in reviewing magistrate's challenged findings or recommendations;
rather, Congress intended to give court discretion on how much reliance to
place on magistrate's proposed findings and recommendations); LoConte v.
Dugger, 847 F.2d 745, 750 (11th Cir. 1988) (under statute, district court
must conduct de novo review of challenged magistrate finding; "use of the
phrase de novo implies" that court's consideration of factual issue must be
independent and based on record); United States v. Leon, 766 F.2d 77, 80 (2d
Cir. 1985) (agreeing that district court should have reviewed magistrate's
denial of bail de novo by reaching its own independent conclusion and not
simply by deferring to judgment of magistrate).
The terms "de novo review" and "de novo consideration" are also used in
other contexts involving one court reviewing the decision of another court or
quasi-judicial body. See In re
Price-Watson Co., 66 B.R. 144, 149 (Bankr. S.D. Tex. 1986) (term "de novo
review" in bankruptcy statute is akin to term "de novo determination" from
Magistrates Act, and "does not mean `de novo trial'"); State ex rel. Oklahoma
Bar Ass'n v. Carpenter, 863 P.2d 1123, 1128-29 (Okla. 1993) (Oklahoma Supreme
Court review of bar disciplinary proceedings is "de novo consideration,"
which entails disciplinary panel submitting complete record for de novo
examination by court); cf. In re Hill, 152 Vt. 548, 555-56, 568 A.2d 361, 365
(1989) (distinguishing between review of Judicial Conduct Board
recommendation in which great weight is given to Board's findings and "de
novo review" in which no deference is given to original fact- finder, but not
suggesting that latter standard would require complete retrial of
disciplinary hearing before Supreme Court).
To sum up, the consensus among courts and commentators is that the term
"review de novo," in contrast to the terms "hearing de novo" and "trial de
novo," means that the reviewing court will reappraise the evidence in the
record and reach its own independent conclusion on the matter at issue.
Indeed, neither defendant nor amicus have cited, and we have not found
anywhere in the country, any court decisions that hold otherwise. This type
of review is quite different from, and obviously more rigorous than, the
deferential treatment an appellate court ordinarily gives to a lower
tribunal's fact-finding -- commonly called the "clearly erroneous" standard.
See V.R.C.P. 52 (trial court's findings of fact shall not be set aside unless
clearly erroneous). We construe the term "review de novo" in its broadest
sense by authorizing the reviewing justice to accept, upon a showing of good
cause, additional evidence on the issue of whether a defendant should be
B. Legislative Intent
Despite the plain meaning of the term "review de novo," defendant and
amicus argue that, by adopting Act 143, the legislature clearly intended that
defendants be accorded a second full evidentiary hearing that would ignore
the initial district court proceedings. We find nothing in the legislative
history of the statute sufficient to overcome the overwhelming consensus on
meaning of the term "review de novo." See Cavanaugh v. Abbott Laboratories,
145 Vt. 516, 530, 496 A.2d 154, 162-63 (1985) (true intent of legislature is
determined through plain meaning of statutory language).
In support of their legislative-intent argument, defendant and amicus
rely heavily on (1) comments made by Chief Justice Frederic W. Allen in
January 1994 to the House Judiciary Committee, and (2) the reaction of the
Joint Rules Committee to our amendment of Rule 9. Neither of these arguments
demonstrates that the voters of Vermont or the legislature intended that
defendants be provided with two full evidentiary hearings before being denied
bail. Chief Justice Allen made comments before the House Judiciary Committee
expressing his belief that members of the committee regarded "review de novo"
as signifying a second evidentiary hearing before a justice of this Court.
Two years earlier, however, the Chief Justice stated to the same committee,
which was reviewing Proposal 7 after it had passed the Senate, that it was
not absolutely clear what the term "review de novo" meant, and that this
Court would probably have to define the term by rule. Regardless of what
Chief Justice Allen said, the remarks of a witness at a committee hearing are
accorded little weight in determining the intent of the legislature in
enacting a statute. 2A N. Singer, Sutherland Statutory Construction
48.10, at 343 (5th ed. 1992). Moreover, the House Committee was considering
language that had been drafted in the Senate so the intent of the House
Committee is not at issue. Defendant's suggestion that the Vermont voters
relied on this "public exchange between the legislative branch and the
judicial branch" in adopting Proposal 7 is farfetched.
Regarding the Joint Rules Committee's negative reaction to our amendment
to Rule 9, legislative intent does not necessarily become apparent from the
post-hoc reaction of a committee of lawmakers. Id. ("committee statements
made after the statute has been passed cannot retroactively provide
legislative history"). Defendant argues, however, that the contemporary
statements of certain legislators indicated that they understood the term "de
novo review" to mean a "de novo trial." None of the quoted statements
denotes unequivocally the speaker's
acknowledgment of what was intended by the disputed term. But even if
individual legislators made comments indicating that they contemplated a
second evidentiary hearing, those comments are of little weight in
determining legislative intent, unless they also exist in a written report
that was available for review by the full legislature before passing the
bill. Id. at 342 (while statements in committee report concerning purpose of
proposed law are used by courts in determining legislative history, courts
"are hesitant to resort to similar statements made by committee members or
other persons at the committee's hearings"); see St. Amour v. Department of
Social Welfare, 158 Vt. 77, 81, 605 A.2d 1340, 1342 (1992) (although not
decisive, intent of legislature as revealed by committee report is highly
persuasive when statute is silent on disputed issue).
In short, the inconclusive legislative history relied on by defendant
and amicus is insufficient to overcome the plain meaning of the term "review
de novo" in the bail amendment and its accompanying legislation. See In re
Killington, Ltd., 159 Vt. 206, 216, 616 A.2d 241, 247 (1992) (legislative
history is helpful only where it clearly shows intent of legislature);
Vermont Development Credit Corp. v. Kitchel, 149 Vt. 421, 428, 544 A.2d 1165,
1169 (1988) (testimony and statements of legislative witnesses and individual
legislators, standing alone, "`have never been regarded as sufficiently
compelling to justify deviation from the plain language of a statute'")
(quoting United States v. Oregon, 366 U.S. 643, 648 (1961)).
This is not a case where the constitutional amendment or statute
contained a "series of oversights," see In re C.S., 158 Vt. 339, 342-43, 609 A.2d 641, 643 (1992), or was silent on the issue in dispute. See Vermont
Elec. Power Co. v. Town of Cavendish, 158 Vt. 369, 375, 611 A.2d 389, 392
(1992) (reviewing legislative history where statute is silent on disputed
point); St. Amour, 158 Vt. at 81, 605 A.2d at 1342 (because statute is silent
on point at issue, legislative history must be examined to determine if
regulation was reasonable interpretation of statute). Nor is this a case
where the common understanding of the term would produce an absurd or
irrational result; indeed, as indicated above, the result obtained is more
reasonable than that
proposed by defendant. Where there is a consensus among courts and
commentators on the meaning of the disputed term, and the legislative history
is inconclusive, the plain meaning of the language must prevail. See Dykstra
v. Property Valuation & Review Div., 156 Vt. 215, 218, 591 A.2d 63, 65 (1991)
(plain meaning of statute is abandoned only in "narrow and particular
III. Due Process
Finally, defendant and amicus argue that this Court's interpretation of
Proposal 7 violates the due process rights of defendants by denying them two
full evidentiary hearings before the bail decision is reviewed by a
three-member panel of this Court. This argument is without merit, as
suggested by the lack of case law to support it. In United States v.
Raddatz, the Supreme Court rejected the argument that a federal statute
violated due process by allowing district courts, in reviewing magistrates'
recommendations regarding motions to suppress, to make de novo determinations
of contested credibility assessments without personally hearing live
testimony. 447 U.S. at 677-80. In determining whether the statute violated
defendant's due process rights, the Court considered (1) the private
interests implicated; (2) the public interest and administrative burdens; and
(3) the risk of an erroneous determination from the process accorded, and the
probable value of additional safeguards. Id. at 677.
An examination of these factors shows that applying the plain meaning of
the term "review de novo" does not violate defendant's right to due process.
Although defendant's interest in avoiding incarceration pending trial is
great, it is of a lesser magnitude than an extended deprivation of freedom
that would result from conviction after a criminal trial, particularly in
light of the bail amendment's requirement that persons held without bail on
charges for crimes not punishable by life imprisonment must be tried within
sixty days after bail is denied. See Vt. Const. ch. II, 40; cf. Raddatz,
447 U.S. at 700-01 (Marshall, J., dissenting) (in our criminal justice
system, suppression hearings are often as important as trial itself because
trial court's ruling may determine outcome of case). Further, while
incarcerated, defendant has an interest
in speedy resolution of the bail determination, which would be hampered by
requiring a second full evidentiary hearing. The general public also has an
interest in speedy resolution of bail determinations, as well as the
protection of sensitive witnesses, which would be undermined by requiring two
evidentiary hearings. Cf. V.R.Cr.P. 15(f) (regarding protection of deponents
with sensitive testimony). As noted previously, requiring two full
evidentiary hearings would also divert scarce judicial resources and
interfere with administrative efficiency of the court system. For instance,
if a bail hearing required days to resolve, cf. State v. Passino, 154 Vt.
377, 383, 577 A.2d 281, 285 (1990) (three-day bail hearing before district
court), holding a new evidentiary hearing here could wreak havoc with this
Court's scheduled cases.
Most importantly, there is no indication that the risk of an erroneous
determination would increase if defendants were not automatically accorded a
second evidentiary bail hearing. A defendant denied bail is entitled to an
evidentiary hearing before a district court judge, who, unlike a federal
magistrate, is empowered to deny the prosecutor's motion to hold the
defendant without bail. If the defendant is denied bail, he or she is
entitled to a second hearing, in which a justice of this Court must make an
independent bail determination. Further, if good cause is shown, the justice
may require witnesses to appear and testify. A defendant who is denied bail
upon a second independent examination of the facts is entitled to seek
further review before a three-member panel of this Court. In short,
defendants are afforded more than adequate protections to satisfy due
Defendant and amicus suggest that the above procedure creates an anomaly
by affording less procedural safeguards to defendants who have more to lose.
They argue that persons detained because of an inability to meet conditions
of release are entitled to a second evidentiary hearing to have the
conditions reviewed. See 13 V.S.A. 7554(d)(1) (person for whom conditions
of release are imposed and who is detained as result of inability to meet
those conditions shall be entitled to have conditions reviewed at hearing).
They further argue that persons held without bail under 13 V.S.A. 7553 --
those who have committed crimes
punishable by life imprisonment -- can appeal denial of bail only to a
three-member panel of this Court. We find no merit in this argument.
First, with respect to defendant's 7554 argument, nothing in that
statute entitles defendants to a full hearing at the time conditions of
release are first imposed; thus, for all practical purposes, defendants are
entitled to only one full hearing to challenge conditions of release that
have been previously set by a judicial officer.(FN4) Second, the issue is
not how many procedural protections one category of persons has compared to
another, but rather whether the procedural safeguards afforded to a defendant
satisfy due process standards. Third, it is not anomalous for the
legislature to afford less procedural protection with respect to denial of
bail to persons accused of serious crimes that, by their very nature, would
pose some danger to the public if the persons were released pending trial.
Cf. Passino, 154 Vt. at 382, 577 A.2d at 284-85 (right-to-bail exception as
applied to those charged with crimes punishable by life imprisonment
"responds to concerns about the risk of flight and the dangerousness of
persons charged with very serious offenses"). The bail determination is not
a conviction and does not result in incarceration concomitant to the crime
We have interpreted the bail amendment and its accompanying statute
according to the plain meaning of their language. The legislative history
cited by defendant and amicus is inconclusive as to what the people of
Vermont and the legislature intended when they adopted Proposal 7 and passed
the accompanying bail statute. We recognize that Proposal 7 and Act 143 are
an accommodation of competing goals -- to protect the people of Vermont and
victims of crime and, at the same time, to assure that defendants held
without bail are afforded sufficient procedural safeguards. Applying the
term "review de novo" according to its plain meaning does not undermine the
latter goal. The additional full-blown evidentiary hearing that defendant
claims is accorded by the bail amendment might give defendants tactical
advantages in certain cases, but would not, in any significant way, lower the
risk of an erroneous bail determination. Further, a second evidentiary
hearing would delay bail determinations and sap vital judicial resources
without providing defendants any significant procedural safeguards. Despite
the apparent belief among some legislators that two evidentiary hearings are
necessary to protect defendants and were intended by the language of Proposal
7 and Act 143, we cannot conclude, given the plain meaning of the term "de
novo review," that the people of Vermont or the full legislature intended to
adopt such a procedure.
The question posed by defendant's challenge -- whether the term "review
de novo," as set forth in Chapter II, Section 40 of the Vermont Constitution
and in 13 V.S.A. 7556(d), requires a single justice of this Court to hold
a second bail hearing without considering the record created in the initial
bail hearing before the district court -- is answered in the negative.
BY THE COURT:
Ernest W. Gibson III, Associate Justice
John A. Dooley, Associate Justice
James L. Morse, Associate Justice
Denise R. Johnson, Associate Justice
FN1. Chief Justice Allen sat at the hearing in this case but did not
participate in the decision.
FN2. All parties agreed that review by the full Court was the appropriate
method to resolve the question. Neither party has argued that the decision
should be made by three justices rather than five.
FN3. Former 13 V.S.A. 7554 neither was inconsistent with nor offered greater
procedural protections than the 1994 bail amendment. Therefore, amicus is
mistaken if he is arguing that, in the absence of Act 143, the former bail
statute would have somehow prevented courts from applying the new bail
amendment without also considering that statute.
FN4. We note that there is no need to decide in this opinion the scope of the
hearing before the district court or a justice of this Court.