Audet v. Koier

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-230

                            NOVEMBER TERM, 1990



Ronald R. Audet, Sr.              }          APPEALED FROM:
and Marion W. Audet               }
                                  }
     v.                           }          Lamoille Superior Court
                                  }
                                  }
Davis Koier, A. Peter Barranco,   }
Jr. and State of Vermont          }          DOCKET NOS. S72/92/141-87Lc




             In the above entitled cause the Clerk will enter:


     Appellant, plaintiff in a negligence action, has appealed from an
adverse jury verdict in forma pauperis and seeks a transcript at the expense
of the state.  The trial court directed the preparation of a partial
transcript at state expense, and the matter is here for approval of this
Court as required by V.R.A.P. 10(b).  The authority for a state-paid
transcript on appeal is contained in V.R.A.P. 24(d): "If an appellant is
proceeding in forma pauperis on appeal, all or part of the transcript may be
prepared at the expense of the state when required by law."  The Reporter's
Note to the rule indicates that the requirement to supply the transcript
would normally be based on the Fourteenth Amendment to the United States
Constitution.  Reporter's Notes to 1982 Amendment to V.R.A.P. 24.  Appellant
asks us to read this rule, and the companion provisions of V.R.A.P.
10(b)(1), as creating an entitlement to a transcript for litigants who are
here in forma pauperis or, at a minimum, authority for the court to require
the state to pay for the transcript in any such case.

     The rule was clearly drafted to implement entitlements to state-funded
transcripts created outside the rules.  It does not itself create an
entitlement to a transcript.  See Amos v. Department of Health and Rehab.
Services, 416 So. 2d 841, 842 (Fla. App. 1982).  As appellant concedes, no
statute creates a right to a transcript here.  Neither the Federal nor the
Vermont Constitution create an entitlement.  See Almarez v. Carpenter, 347 F. Supp. 597, 603 (D. Colo. 1972) (Federal Constitution); Almarez v.
Carpenter, 173 Colo. 284, 289-93, 477 P.2d 792, 795-97 (1970) (Federal and
Colorado Constitution); Hodgdon v. Gallagher, 113 N.H. 185, 186, 304 A.2d 375, 376 (1973) (Federal Constitution).  Thus, we are without authority to
require the state to pay for a transcript in this case.

     The trial court was in error in ordering a transcript at state expense.
The request for approval of that order is denied and the matter is remanded
to the Lamoille Superior Court for consideration of alternatives under
V.R.A.P. 10(c) to allow the appeal to proceed.










                                   BY THE COURT:




                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice


                                   Louis P. Peck, Associate Justice (Ret.),
                                   Specially Assigned