In re Williams

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 87-362
 
 
In re Douglas R. Williams                    Supreme Court
 
                                             On Appeal from
                                             District Court of Vermont,
                                             Unit No. 1, Rutland Circuit
 
                                             May Term, 1989
 
 
George F. Ellison, J.
 
Henry C. Brislin, City Attorney, Rutland, for plaintiff-appellant
 
Cortland Corsones of Corsones and Corsones, Rutland, for defendant-
  appellee
 
 
PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ.
 
 
     DOOLEY, J.   This proceeding involves district court review of the
grounds and procedure for dismissing a police officer.  We hold that the
statute that authorizes this proceeding violates the separation of powers
provision of the Vermont Constitution Chapter II, { 5, and dismiss the
proceeding.
     In October of 1986, the Rutland City Police Chief gave Douglas
Williams, an officer in the Rutland Police Department, a notice of dismissal
without pay effective seven days later.  The notice also served as a request
to the Rutland Board of Civil Authority to convene a hearing on the Chief's
action.  On November 3, 1986, defendant Williams exercised his option
pursuant to 24 V.S.A. { 1932(c) to file with the district court a notice of
election to have the case heard before that court.  The district court held
a hearing and issued findings of fact and conclusions of law on April 27,
1987.  The court concluded that the dismissal of defendant was constitu-
tionally defective since the procedure used did not strictly comply with
the city charter and ordinances, and the applicable Vermont statutes.  The
court also concluded that defendant could not receive a fair hearing because
the dismissal was based on incidents that occurred eight years earlier.
Finally, the court concluded that the evidence was not sufficient to find
defendant guilty of misconduct.
     The City of Rutland has appealed here alleging that the district court
did not have jurisdiction, and, in any event, that it made a number of
errors fatal to its conclusions.  Defendant moved to dismiss the appeal
arguing that no appellate jurisdiction lies as held in City of Winooski v.
Vincent, 137 Vt. 252, 252, 402 A.2d 1192, 1192 (1979), and otherwise argues
that the lower court decision should be affirmed.  Following argument, we
requested supplemental briefing on whether the statutory scheme imposes non-
judicial responsibilities on the judiciary in violation of the separation of
powers section of the Vermont Constitution.  Vt. Const. ch. II, { 5 (the
departments "shall be separate and distinct, so that neither exercise the
powers properly belonging to the others"). (FN1)
     24 V.S.A. { 1932(a) provides that when "it appears to the appointing
authority" of a municipal police officer that the officer has become negli-
gent or derelict in official duty, or is guilty of conduct unbecoming an
officer, the appointing authority must set a hearing before the legislative
body of the municipality on the charge.  The officer can go to hearing
before the legislative body or, at least twenty-four hours before the hear-
ing time, file with the district court a notice of election to have the
hearing before the district court.  24 V.S.A. { 1932(c).  If the officer
elects to go to the district court, the court must set the matter for
hearing within ten days from the filing of the notice.  In such a case, the
court must determine "the facts and certify its findings, which shall be
final, to the legislative body."  Id.
     If the legislative body or the court finds that the officer is guilty
of the alleged charges, "the legislative body shall have the power by
majority vote to remove said officer or to suspend him without pay for a
period of time not to exceed sixty days."  24 V.S.A. { 1932(d).  The statute
does not require that the legislative body take any action on its findings
or those of the district court.  If the officer is found not guilty,
however, the statute appears to prohibit the legislative body from taking
any action.  24 V.S.A. { 1932(e).  All of this procedure is superseded if
the municipality "has charter provisions providing for tenure of police
officers during good behavior with removal only after hearing and for
cause."  24 V.S.A. { 1934.
     The statute makes our district courts hearing officers for munici-
palities.  As agents of the municipality, the court "certifies" its action
to the legislative body of the municipality.  The court's determination that
an officer is guilty of the charges has no effect unless a majority of the
governing body of the municipality votes to give it a particular effect.
Ironically, the court is involved because the municipality has no standards
it must follow in deciding whether to remove or discipline an officer.  If
the municipality adopts a charter provision that allows for removal of an
officer "only after hearing and for cause" the court is not involved in the
hearing.  24 V.S.A. { 1934.
     By letter to the Governor, this Court advised the Governor and Legis-
lature that a statute that attempted to require this Court to answer ques-
tions about the constitutionality of pending legislation was unconstitu-
tional.  In re Constitutionality of House Bill 88, 115 Vt. 524, 64 A.2d 169
(1949).  The Court reasoned that in the absence of constitutional authoriza-
tion for such a procedure, the giving of advisory opinions would be "extra-
judicial" and violate the separation of powers between the judicial and
legislative branches.  Id. at 527-28, 64 A.2d  at 171.  The power of courts
is "'to determine actual controversies arising between adverse litigants,
duly instituted in courts of proper jurisdiction.'"  Id. at 529, 64 A.2d  at
172 (quoting Muskrat v. United States, 219 U.S. 346, 361 (1911)).  This
power does not include giving advisory opinions "upon a question of law not
involved in actual and bona fide litigation brought before the Court in the
course of appropriate procedure."  Id.
     More recently, this Court applied the principle of In re Constitutiona-
lity of House Bill 88 to a statute that authorized the judiciary to
determine the winner of a contested election for a seat in the Vermont House
of Representatives.  See Kennedy v. Chittenden, 142 Vt. 397, 457 A.2d 626
(1983).  We held that the statute conferred powers on the judiciary beyond
our constitutional function and in violation of Chapter II, { 5 of the
Constitution.  We relied particularly on the fact that the Legislature is
the final "judge of the elections and qualifications of [its] own members"
under Chapter II, { 14 of the Constitution, and that any action the Court
took would be subject to "revision or reversal" by the Legislature.  Id. at
399, 457 A.2d  at 627.  This limited effect of the judicial action ran afoul
of the "precept that the exercise of judicial authority must lead to a
final enforceable result and not be merely informative or advisory."  Id.
     A situation very similar to that present here arose in the landmark
case of Matter of Richardson, 247 N.Y. 401, 160 N.E. 655 (1928) where Chief
Judge Cardozo struck down a New York statute under which the removal of the
President of Queens Borough was to be reviewed by the New York Supreme
Court.  Pursuant to the statute, a citizen filed with the Governor of New
York charges against the borough president and sought the president's
removal.  The Governor then directed a Justice of the New York Supreme Court
to hear the charges and make a report thereon to the Governor.  When the
Justice attempted to move forward to a hearing, the borough president sought
a writ of prohibition to stop the proceeding.
     Judge Cardozo held that the proceeding violated the New York Constitu-
tion because it placed nonjudicial responsibilities on a judicial officer
and violated the specific prohibition on placing other public office or
trust on a judge.  Although the Cardozo opinion is lengthy and develops the
similarities of the role of the judge to that of a prosecutor, it is par-
ticularly instructive for its examination of both the philosophical and
practical reasons why placing the hearing responsibility in the judge
offends the basic structure of a government with independent branches.
     Justice Cardozo reasoned that the proceeding offended the separation of
powers because it made the Judge "the delegate of the Governor in aid of an
executive act" and went on to reason that:

         His findings when made will have none of the authority
         of a judgment.  To borrow Bacon's phrase, they will not
         "give the rule or sentence."  They will not be prelim-
         inary or ancillary to any rule or sentence to be pro-
         nounced by the judiciary in any of its branches.  They
         will be mere advice to the Governor, who may adopt them,
         or modify them, or reject them altogether.  From the
         beginnings of our history, the principle has been en-
         forced that there is no inherent power in Executive or
         Legislature to charge the judiciary with administrative
         functions except when reasonably incidental to the ful-
         fillment of judicial duties . . . .  The exigencies of
         government have made it necessary to relax a merely
         doctrinaire adherence to a principle so flexible and
         practical, so largely a matter of sensible approxima-
         tion, as that of the separation of powers.  Elasticity
         has not meant that what is of the essence of the
         judicial function may be destroyed by turning the power
         to decide into a pallid opportunity to consult and
         recommend . . . .
 
247 N.Y.  at 410, 160 N.E.  at 657 (citations omitted).  To the philosophical
principle, Judge Cardozo added a more practical objection that "[t]he policy
is to conserve the time of the judges for the performance of their work as
judges, and to save them from the entanglements, at times the partisan
suspicions, so often the result of other and conflicting duties."  247 N.Y. 
at 420, 160 N.E.  at 661.  He noted that the Supreme Court Justice in
Richardson had already spent two months away from his official duties while
engaging in the factfinding as directed by the Governor.  Id.
     A similar case arose in Michigan with respect to the removal of a
county officer.  Under the Michigan scheme, a hearing was held by a probate
judge at the direction of the Governor.  The hearing was, however, similar
to an inquest to allow the Attorney General or a prosecuting witness to
examine the witness under oath.  The judge made no findings, but did make
evidentiary and procedural rulings.
     The Michigan Supreme Court struck down the statute as imposing func-
tions of the executive branch on the judicial branch.  Buback v. Romney,
380 Mich. 209, 156 N.W.2d 549 (1968).  The court reasoned that when the
constitution assigned the power to remove a county officer to the executive
branch, "that power must be exercised within that branch if the doctrine of
separation of powers is to be meaningful."  Id. at 227, 156 N.W.2d  at 558.
It went on to hold that the statute

         imposes on a probate judge a function in the removal
         process which is a partial exercise of executive power
         because the legislature by statute placed the obligation
         and responsibility for removal of county officers in the
         Governor.  The function of hearing witnesses . . . can
         be performed by the Governor.  If a probate judge is
         appointed by the Governor to undertake that function,
         the judge becomes the Governor's substitute.
 
Id.
     Other courts facing conceptually similar situations have followed the
rationale of Matter of Richardson.  See, e.g. Brach v. Chief Justice of
District Ct. Dep't, 386 Mass. 528, 437 N.E.2d 164 (1982) (district court
acting as agent of the Registrar of Motor Vehicles in accepting motor
vehicle license on conviction of a crime violates the separation of powers
provision of the Massachusetts Constitution); In re Opinion of the Justices,
300 Mass. 596, 14 N.E.2d 465 (1938) (removal of mayor of city or chief of
police by Justices of the Supreme Judicial Court when "the public good so
requires," vests executive power in the judiciary); Application of Nelson,
83 S.D. 611, 163 N.W.2d 533 (1968) (statute making a circuit judge chair of
mediation panel to determine which of competing suppliers will provide
electrical service in a specific area violated the separation of power
provision of the South Dakota Constitution); Timpanogos Planning v. Central
Utah Water, 690 P.2d 562 (Utah 1984) (appointing nonjudicial officers).
     The statute involved in this case has the same defects as that in
Richardson.  The action of the district court is merely advisory and the
legislative body of the municipality may choose to take no action even if
the court has found misconduct.  As in Richardson, the findings of the
district court have none of the authority of a judgment.  They are "cer-
tified" to the municipality as an advanced ruling on what may or may not
become a personnel dispute between the police officer and the legislative
body of the municipality.  The district court must, on short notice, drop
what it is doing and turn to the charges made concerning the police officer.
     The Vermont district court, which was first created in 1968 to take
some of the workload from the superior court, now receives sixty thousand
new cases per year.  Although we have added judges and staff over the years,
manpower and resources have not kept pace with the caseload growth, and each
year we demand higher levels of productivity from the court.  As the cases
appealed to this Court demonstrate, the caseload growth has meant that the
district court cannot meet statutory time limits for the adjudication of
juvenile cases where the critical interests of children and families are at
stake, see, e.g., In re M.C.P., No. 87-074, slip op. at 31-32 (Vt. Dec. 8,
1989), and further that they cannot always meet the time guidelines for
adjudication of criminal cases.  See, e.g., State v. French, ___ Vt. ___,
___, 564 A.2d 1058, 1060-62 (1989).
     Under these circumstances, a legislative command to drop everything and
adjudicate a personnel dispute within ten days of the request can have
serious adverse consequences for the many other litigants in the court, as
well as to important public interests.  Where that command crosses the line
that marks the limit of judicial power and responsibility to make the
district court an agent of a municipality which may or may not accept its
findings, we must clearly and firmly decline the responsibilities the
Legislature seeks to impose on us.
     The district court had no jurisdiction to hear this proceeding.
Accordingly, we will dismiss it here.
     Dismissed.
 
                                        FOR THE COURT:
 
 
 
                                        Associate Justice




FN1.      Defendant argues that we should not reach the separation of powers
issue because it was not raised by the city below.  The issue goes to
whether the trial court had any jurisdiction and thus can be raised for the
first time on appeal.  See Soucy v. Soucy Motors, Inc., 143 Vt. 615, 617,
471 A.2d 224, 225 (1983).  Since it involves the proper powers and
responsibilities of the judicial branch, it is incumbent on us to raise the
issues even if the parties did not.