COMMONWEALTH vs. RUSS R., a juvenile

COWIN, J. General Laws c. 233, s. 20E, authorizes Justices of the Supreme Judicial Court, the Appeals Court, and the Superior Court to issue an order granting immunity to a witness [Note 1]. General Laws c. 119, s. 56 (d), provides that judges presiding over jury

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sessions in the Juvenile Court Department [Note 2] "shall have and exercise all the powers and duties which a justice sitting in the superior court department has and may exercise in the trial and disposition of criminal cases [Note 3]." The present case requires us to determine whether s. 56 (d) provides Juvenile Court judges with the authority to grant immunity to a witness pursuant to the immunity statute. This question arises because in one statute the Legislature has enumerated three courts that have the authority to grant immunity, including the Superior Court but not the Juvenile Court; yet, in another statute, the Legislature provided Juvenile Court judges with all the powers of Superior Court judges in criminal proceedings. These two statutes appear to be

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in conflict. We therefore must decide whether the Legislature intended to confer on the Juvenile Court the Superior Court's power to grant immunity to a witness. We conclude that the Legislature did not so intend.

1. Background. We briefly summarize the relevant facts and proceedings. The juvenile was indicted as a youthful offender for breaking and entering with the intent to commit a felony, larceny of a firearm, possession of an unlicensed firearm, possession of a firearm with a defaced identification number, and receiving stolen property. Prior to trial in the juvenile session of the Quincy Division of the District Court Department, a judge in that court denied the Commonwealth's application for a grant of immunity to a witness, who was scheduled to testify for the Commonwealth. [Note 4]" The judge denied the Commonwealth's application for immunity, ruling that s. 20E "limits the authority to immunize witnesses to those 'criminal proceedings . . . IN the superior court' " (emphasis in the District Court's order).

The Commonwealth appealed to a single justice of this court, who, after a hearing, reserved and reported the matter to the full court. We affirm the District Court judge's order denying the Commonwealth's application for an order granting immunity to the witness.

2. 1996 amendments to G. L. c. 119. In 1996, the Legislature made significant changes to the law governing juvenile offenders. See St. 1996, c. 200 (youthful offender act). These changes were designed primarily "to reduce or to eliminate certain protections previously available to all juvenile offenders in an effort to address growing concern about violent crimes committed by juveniles." Commonwealth v. Connor C., 432 Mass. 635, 641 (2000), quoting Commonwealth v. Clint C., 430 Mass. 219, 227-228 (1999).

One of the changes wrought by the 1996 amendments was the repeal of the two-step transfer provision, G. L. c. 119, s. 61, which provided that a case could be transferred from the

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Juvenile Court to the Superior Court in order to try a child fourteen years of age or older as an adult [Note 5]. Under the new law, the Commonwealth may proceed against a child by indictment in a Juvenile Court [Note 6] if the child is considered a "youthful offender [Note 7]." See G. L. c. 119, s.s. 52, 54. The 1996 legislation permits Juvenile Court judges to treat violent juvenile offenders more severely than juveniles who commit less serious crimes, including sentencing such offenders to a State prison or house of correction. G. L. c. 119, s. 58. See R.L. Ireland, Juvenile Law s. 3, at 13 (Supp. 1999). In addition, the Legislature reaffirmed [Note 8] that a Juvenile Court judge has "all the powers and duties which a justice sitting in the superior court department has and may exercise in the trial and disposition of criminal cases [Note 9]." G. L. c. 119, s. 56 (d), as appearing in St. 1996, c. 200, s. 4.

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3. 1998 amendments to G. L. c. 233. In 1998, the Legislature "significantly broadened . . . the procedural circumstances in which witnesses may be granted immunity." Commonwealth v. Dalrymple, 428 Mass. 1014, 1015 (1998). See St. 1998, c. 188, s. 4. Prior to the 1998 amendments, only a Justice of this court could issue an order granting immunity to a witness and only at the grand jury stage of the proceedings. See G. L. c. 233, s.s. 20C-20H, inserted by St. 1970, c. 408. Pursuant to the amended law, a Justice of this court, the Appeals Court, or the Superior Court "shall . . . issue an order granting immunity to a witness, provided that such justice finds that the investigation or proceeding before the grand jury or the criminal proceeding in the supreme judicial court, appeals court or superior court involves an offense listed in section 20D [Note 10] and that the witness did validly refuse, or is likely to refuse, to answer questions or produce evidence on the grounds that such testimony or such evidence might tend to incriminate him." G. L. c. 233, s. 20E (a).

4. Discussion. Mindful of the history of the statutes and the subsequent amendments, as well as long-standing principles of statutory construction, we consider the relationship between G. L. c. 119, s. 56 (d), and G. L. c. 233, s. 20E.

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We acknowledge that the statutes at issue may be interpreted in two conflicting ways. On the one hand, the Legislature is presumed to be aware of existing statutes when it amends a statute or enacts a new one. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 582-583 (1994), and cases cited. Thus, we presume that the Legislature was aware that s. 56 (d) provided Juvenile Court judges with the authority of Superior Court judges in the trial and disposition of criminal cases when it amended the immunity statute to empower Superior Court judges to immunize witnesses in criminal proceedings. If the Legislature were aware that s. 56 (d) gave the Juvenile Court the same powers, there was no need to refer specifically to the Juvenile Court in the immunity statute.

However, other canons of statutory construction lead us to a different conclusion, namely that the Legislature did not intend to grant immunity power to Juvenile Court judges. When a statute is plain and unambiguous, we interpret it according to its ordinary meaning. See Commonwealth v. Brown, 431 Mass. 772, 775 (2000), citing Victor v. Commonwealth, 423 Mass. 793, 794 (1996). "Of course, this meaning must be reasonable and supported by the purpose and history of the statute." Wright v. Collector & Treasurer of Arlington, 422 Mass. 455, 457-458 (1996), citing Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986). Here, looking only at the language of s. 20E, the statute provides that the Justices of this court, the Appeals Court, and the Superior Court have the power to immunize witnesses. The statute makes no reference to Juvenile Court or District Court judges [Note 11]. See 1997 House Doc. No. 2044 (in letter to Senate and House of Representatives Governor William Weld wrote that proposed legislation would amend immunity statute to 44 grant this power to the justices of the Appeals Court and Superior Court as well" but did not mention judges of any other court). We are not permitted to add words to a statute that "the Legislature did not see fit to put there." General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999), quoting King v. Viscoloid Co., 219 Mass. 420, 425 (1914). See Commissioner of Revenue v. Cargill, Inc., 429 Mass. 79, 82 (1999) ("Where, as here, the language of the statute is clear, it is the function of the judiciary to apply it, not amend it").

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In addition, "a statutory expression of one thing is an implied exclusion of other things omitted from the statute." Police Comm'r of Boston v. Cecil, 431 Mass. 410, 413 (2000), quoting Harborview Residents' Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432 (1975), and cases cited. The Legislature enumerated three courts in the immunity statute, but did not include the Juvenile Court. Accordingly, the Legislature's actions suggest that it intended to exclude the Juvenile Court.

Further, where two statutes conflict, the later statute governs. See Boston Hous. Auth. v. Labor Relations Comm'n, 398 Mass. 715, 718 (1986), citing Doherty v. Commissioner of Admin., 349 Mass. 687, 690 (1965). In this case, the immunity statute was amended two years after s. 56 (d) was enacted. Similarly, where "a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute.11 Pereira v. New England LNG Co., 364 Mass. 109, 118 (1973). See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992), citing Crawford Fitting Co. v. J.T Gibbons, Inc., 482 U.S. 437, 445 (1987) ("it is a commonplace of statutory construction that the specific governs the general"); Morey v. Martha's Vineyard Comm'n, 409 Mass. 813, 819 (1991) (general language must yield to more precise language); Hennessey v. Berger, 403 Mass. 648, 651 (1988) (same). Section 56 (d) confers a general power on Juvenile Court judges in jury sessions ("all the powers and duties which a justice sitting in the superior court department has"), whereas s. 20E provides the Justices of the enumerated courts with the specific power to immunize witnesses.

When rules of statutory construction produce conflicting results, we must discern, as closely as possible, what the Legislature intended. See Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 89 (1934) (canons of statutory construction apply to ascertain meaning of statute, but if one canon does not effectuate purpose of statute as whole, it yields to "the wider view in order that the will of the legislature shall not fail"); Commonwealth v. Dale D., 431 Mass. 757, 760-761 (2000), and cases cited ("We construe statutes in accordance with the Legislature's intent and in order to effectuate the purpose of their framers"). Even assuming that the Legislature was

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cognizant of the general delegation of Superior Court powers to the Juvenile Court in s. 56 (d), it is unlikely that the Legislature would have relied on that section to authorize the Juvenile Court to grant immunity to witnesses when it amended the immunity statute to include specifically the Appeals Court and the Superior Court. The amendment served to expand the power to immunize witnesses. In such circumstance, the Legislature likely considered carefully which courts should be granted this additional power. It easily could have included the Juvenile Court in the statute, and we assume it would have done so if that were its intent.

Further, the authority to grant immunity to a witness is delineated by the court in which the proceeding occurs. The statute makes no provision for granting immunity to witnesses in proceedings held in the Juvenile or District Court [Note 12]. Rather, it provides that "[a] justice of the supreme judicial court, appeals court or superior court shall . . . issue an order granting immunity to a witness . . . [scheduled to testify in a] criminal proceeding in the supreme judicial court, appeals court or superior court" (emphasis supplied). G. L. c. 233, s. 20E (a). Thus, the determination of immunity is dependent on the court in which the proceeding takes place. Regardless of the judge who is authorized to grant immunity, a witness may only be immunized for a proceeding in the Supreme Judicial Court, the Appeals Court, or the Superior Court. The District Court judge in this case correctly recognized that the authority to grant immunity to a witness is limited "to those 'criminal proceedings . . . IN the superior court' " (emphasis in the District Court's order) [Note 13]. The plain language of the statute does not permit a Justice of any court, including this one, to grant immunity to a witness scheduled to testify in a proceeding conducted in the Juvenile or District Court. We, therefore, conclude that the Legislature did not intend to provide Juvenile Court judges (or any judge) with the power to issue an order granting immunity to a witness in a Juvenile Court proceeding.

The Commonwealth argues that this interpretation would

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carve out an exception to the provision that Juvenile Court judges in jury sessions shall have all the powers and duties of Superior Court judges sitting in criminal cases. That may be so, but it is an exception that the Legislature itself created. We assume that the Legislature " 'understand[s] and intend[s] all consequences' of its acts." Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994), quoting Boston Water & Sewer Comm'n v. Metropolitan Dist. Comm'n, 408 Mass. 572, 578 (1990).

We recognize that the youthful offender act was an attempt to address "the prevalent societal issue of juvenile violence," R.L. Ireland, Juvenile Law s. 2, at 8 (Supp. 1999), and that its new provisions reflect an attitude of dealing more severely with juveniles who commit violent crimes (e.g., confinement in. a State prison or house of correction, G. L. c. 119, s. 58; mandatory penalties for certain weapons violations, id.; court proceedings open to the public, G. L. c. 119, s. 65; court records open to public inspection, G. L. c. 119, s. 60A). See R.L. Ireland, supra at 8-9. Whatever the impact on the powers of Juvenile Court judges as a result of the statute at issue here, the Legislature has made that choice [Note 14]. It is not our function "to judge the wisdom of legislation or to seek to rewrite the clear intention expressed by the statute." Commonwealth v. Leno, 415 Mass. 835, 841 (1993), quoting Mellor v. Berman, 390 Mass. 275, 283 (1983). We defer to the Legislature in this matter.

5. Conclusion. We conclude that judges in the Juvenile Court do not have the power to issue an order granting immunity to a

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witness pursuant to G. L. c. 233, s. 20E. We therefore affirm the District Court judge's order.

So ordered.

IRELAND, J. (concurring, with whom Sosman, J., joins). While I agree with the majority opinion, I write separately to express my deep concerns about its practical consequences. Indeed, as the dissent asserts, our decision may "seriously impede the prosecution of dangerous and violent juvenile offender[]" cases. Post at 524. However, given our analysis and rules of statutory interpretation, I believe we are constrained to reach the conclusion we reach. Accordingly, I urge and invite the Legislature to address this obvious oversight immediately.

GREANEY, J. (dissenting, with whom Spina, J., joins). The court's decision will seriously impede the prosecution of dangerous and violent juvenile offenders. To give just one example as a result of the decision, a prosecutor, in a case involving violent crimes committed by juvenile gang members (a common occurrence in today's society) will not be able to offer immunity to one gang member in exchange for his testimony against the others, a situation which may stymie or prevent the prosecution [Note Dissent-1]. I conclude that the Legislature could not have intended to withhold the power to grant immunity from Juvenile Court judges, and thus undermine the goals of the Youthful Offender Act. I, therefore, dissent.

The court's interpretation fails to give full effect to the

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language of s. 56 (d), contrary to the accepted principle of interpretation that all the words in a statute are to be given meaning. See Hallett v. Contributory Retirement Appeal Bd., 431 Mass. 66, 69 (2000). By so doing, the court carves out an unwarranted exception to the provision in s. 56 (d) that Juvenile Court judges in jury sessions shall have all the powers and duties of Superior Court judges sitting in criminal cases. Under the court's construction, s. 56 (d) now reads as providing Juvenile Court judges in jury sessions with the powers of Superior Court judges in the trial and disposition of criminal cases except for the power to enter an order granting a witness immunity. Thus, the court "make[s] [part of the] statutory language meaningless," an undesirable result. See Commonwealth v. Maher, 408 Mass. 34, 37 (1990).

In my view, s. 20E of the immunity statute, and s. 56 (d) of G. L. c. 119, can be read together [Note Dissent-2]. It should be assumed that the Legislature was aware of existing statutes when it enacted s. 20E, Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 614 (1957), and every effort should be made to interpret s. 20E in harmony with s. 56 (d), in order to create a consistent body of law. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 582-583 (1994), and cases cited. "The Legislature is 'presumed to understand and intend all consequences' of its acts." Id. at 583, quoting Boston Water & Sewer Comm'n v. Metropolitan Dist. Comm'n, 408 Mass. 572, 578 (1990). In 1998, when the Legislature amended the immunity statute to authorize Superior Court judges to immunize witnesses in criminal proceedings, it must have been cognizant that s. 56 (d), enacted not two years earlier, continued in effect the provision that Juvenile Court judges possessed all the authority of Superior Court judges in the trial and disposition of criminal cases. It follows logically that the Legislature intended Juvenile Court judges to exercise immunity powers, because the Legislature presumably understood that, by providing Superior Court judges with the authority to immunize witnesses, it was

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providing Juvenile Court judges with this power as well.

This conclusion is consistent with, and supported by, the climate that existed at the time the Legislature amended the immunity statute. The Youthful Offender Act, passed shortly before s. 20E, was an emphatic and strong legislative response to "the prevalent societal issue of juvenile violence." R.L. Ireland, Juvenile Law s. 2, at 8 (Supp. 1999). That Act's new provisions reflected the more conservative view that the Legislature had adopted toward juveniles who commit violent crimes (e.g., confinement in a State prison or house of correction, G. L. c. 119, s. 58; mandatory penalties for certain weapons violations, id.; court proceedings open to the public, G. L. c. 119, s. 65; court records open to public inspection, G. L. c. 119, s. 60A). See R.L. Ireland, supra at 8-9. The Legislature obviously concluded that violent juvenile offenders should be prosecuted in the Juvenile Court, essentially in the same manner as adults in the Superior Court [Note Dissent-3]. Because the Legislature has broadened the jurisdiction, and concomitant authority, of Juvenile Court judges to confront escalating violent juvenile crime, it would be inconsistent for the Legislature, only two years later, to confine the power to immunize witnesses to Superior Court judges and thereby deprive prosecutors of a vital crime fighting tool [Note Dissent-4]. The order below should be vacated and the case remanded with directions that the Commonwealth's application for immunity for the witness should be heard, and, if appropriate, granted.