By Elizabeth Kruska
One of the first things you learn in law school is that certain words mean certain things. The best example of this is “shall” versus “may.” “Shall” means “this is something that has to happen and unless we tell you there is an exception this is how it is.” “May” means “hey, it’s possible and this is allowed but nobody’s saying it’s absolute.”
In this case, the SCOV majority takes many pages to remind everybody what law students learn on the second day of law school.
Mr. Hemingway was placed on probation for first-degree aggravated domestic assault in April of 2010. He and his lawyer negotiated a plea agreement with the state that included the so-called “standard” terms of probation and some additional specific terms. He signed the plea agreement, went to court, and was sentenced. One of the conditions articulated was that he not abuse or harass his wife, who was the victim in the first-degree aggravated domestic assault charge.
He did not receive a “certificate explicitly setting forth the conditions upon which he [was] released” and the State conceded that Mr. Hemingway never signed a probation order.
Off he went, and a couple months later was arrested for violating his probation for getting into a violent altercation with his wife. The State alleged that he violated the condition that he not abuse or harass his wife. Many months later a violation hearing was held. Although neither Mr. Hemingway nor his probation officer could say with specificity that the conditions had been reviewed with him, the judge found a violation.
Mr. Hemingway appealed on this basis, and also on the issue of his wife’s credibility during her testimony. SCOV reversed on the first issue and did not need to reach the second.
So here’s the deal: probation deals with people’s liberty. If you violate your probation, you can end up in jail. That’s pretty huge. Probationers, so that they know what to do (or not do) to keep themselves out of jail, need to have specific notice of what is expected. If it’s written down, it’s hard to misconstrue. There’s a statute at play here that uses the magic word “shall.” A probationer “shall” be given a certificate specifically articulating his or her conditions. That way the probationer has notice, and if there’s any issue later on, it’s in writing.
He didn’t get a written certificate, and it was never clear that the probation officer actually reviewed the probation conditions with him. SCOV finds he didn’t have sufficient notice of the condition, so there couldn’t have been a violation. The violation finding is reversed.
Chief Justice Reiber, joined by Justice Burgess, dissents. The Chief points out lots of different ways there are and can be actual notice to a probationer of his or her conditions, Even if the conditions are written on a “certificate” they may be somehow ambiguous. Notice can be on the plea agreement, or on the record, and that should suffice if there’s no written order.
He also points out the sub-rule of “shall” which is “shall means shall except for when it doesn’t.” Even though the statute says a certificate shall be provided, there’s no remedy noted if a certificate isn’t provided. If it was such a big deal to get a certificate, the legislature would’ve provided a consequence if it isn’t done. If there’s a consequence, “shall” is mandatory. This is sort of the “if you don’t eat your meat, you can’t have any pudding” of statutory construction.
The dissent concludes with the point that the statute at issue wasn’t created with this consequence in mind. It seems Chief Justice Reiber was troubled by the outcome – almost like Mr. Hemingway got away with some bad behavior that he should have known not to do just because he didn’t have the right piece of paper telling him what to do (or not). If this was a letter from a friend instead of a Supreme Court opinion it might read like this: “Seriously dude, you’re on probation for assaulting your wife. You’re out of your mind if you think you can say with a straight face that you didn’t know you shouldn’t ‘abuse or harass’ your wife.”
Alas. The statute says “shall.”