Saturday, July 29, 2017


State v. Joseph2017 VT 52

By Elizabeth Kruska

Mr. Joseph owns some land in Bennington County. He had some trees he wanted to cut down. Unfortunately, he strayed onto his neighbor’s land and cut down three of his neighbor’s trees.
He is all pine, and I am apple orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He was charged with a type of trespass that forbade entering property and taking something of value which is parcel of the realty. Trees fit that description. While Mr. Joseph’s trial was pending, the legislature passed a timber trespass law that seemed to conflict with the existing law.

The court asked the parties to analyze which law applied to Mr. Joseph. The penalties differed between the two statutes. Mr. Joseph thought the new statute should apply because it was more specific. The State thought the original charge should stand, because the two could exist in harmony, like good neighbors.

The trial court agreed with the defendant and said the new law effectively repealed the old one. The State appeals.

SCOV decides that even though the legislature made a new law very specific to timber trespass, that they didn’t mean to repeal the older statute. This only happens if the two statutes are completely at odds with one another, or if they aren’t and the new statute clearly is meant to replace the old one.

SCOV decides that the Legislature appeared to focus in on the specific issue of timber trespass. The Legislature decided to put the new law in the criminal code chapter that governs crimes related to trees and plants. The old law was in the chapter on larceny. The language in the old law was “parcel of the realty” which includes trees, but isn’t limited to trees.

The statutes didn’t totally overlap, and while the Legislature could have walled in or walled out by saying, “this does not repeal the old law,” they didn’t. But SCOV finds they didn’t need to because they also included different mental state elements and differing penalties. They basically made a new misdemeanor to fill a gap where there wasn’t one before.

So, SCOV reverses the trial court’s conclusion that the new law repealed the old law by implication. Both statutes continue to coexist in harmony.

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