In re VT Supreme Court Admin. Directive No. 17
Annotate this Case
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.
Nos. 90-102 and 90-122
In re Vermont Supreme Court Supreme Court
Administrative Directive No. 17
and Harriet and Donald Smith, Original Jurisdiction (90-102)
et al.
v. On Appeal from
Chittenden Superior Court (90-122)
The Vermont Supreme Court,
The Honorable Frederic W. Allen,
The Honorable Louis P. Peck, May Term, 1990
The Honorable Ernest W. Gibson III,
The Honorable John A. Dooley,
The Honorable James L. Morse,
in their Individual Administrative
Capacities as Justices of the
Vermont Supreme Court
Alden T. Bryan, J. (90-122)
John F. Evers of Langrock Sperry Parker & Wool, Middlebury, Jerome F.
O'Neill of O'Neill and Crawford, Burlington, and Deborah T. Bucknam,
St. Johnsbury, for petitioners/appellants
Jeffrey L. Amestoy, Attorney General, and Robert W. Gagnon and Marilyn
Skoglund, Assistant Attorneys General, Montpelier, for respondents
PRESENT: Gibson, Dooley and Morse, JJ., and Barney, C.J. (Ret.) and
Keyser, J. (Ret.), Specially Assigned
BARNEY, C.J. (Ret.), Specially Assigned. Petitioners brought a
petition for extraordinary relief under V.R.A.P. 21 seeking a declaration
that an administrative directive of this Court ordering the delay of most
civil jury trials until after July 1, 1990 for budgetary reasons is
unconstitutional. Petitioners were also plaintiffs in a superior court suit
seeking substantially the same relief and have appealed the dismissal of
that action. We dismiss the petition for extraordinary relief and affirm
the dismissal of the superior court action.
On January 11, 1990 this Court issued Administrative Directive No. 17,
entitled "Temporary Postponement of Civil Jury Trials," which stated as
follows:
The resources available to the Judiciary have been
drastically reduced for the remainder of fiscal year
1990. Accordingly, each superior and district court
judge and clerk is hereby ordered to postpone until
after July 1, 1990 any civil jury case for which the
jury has not yet been drawn.
The administrative judge is hereby authorized to permit
the trial of any given case where justice requires, but
it is envisioned that nearly all civil jury cases will
be delayed.
This directive shall become effective on January 22,
1990.
There is no dispute over the motivation for the issuance of
Administrative Directive 17. Financial problems within the State of Vermont
caused the Governor and Legislature to order rescissions -- that is,
reductions in the preexisting appropriations for government agencies. The
Governor ordered a 2% reduction in appropriations shortly after the fiscal
year began. In January, 1990, the House of Representatives cut the current-
year budget of the Judiciary by another $127,000. In anticipation that this
further cut in appropriated funds would be adopted by the Senate, as it was,
the moratorium was adopted along with a number of other cost-cutting
measures because the funds available were not enough to cover the
anticipated costs for the judicial department's programs.
In Docket No. 90-122, litigants in thirteen superior court cases
throughout Vermont brought individual actions and a class action in the
Chittenden Superior Court pursuant to V.R.C.P. 65 and 75, purporting to
represent all individuals with civil cases pending in the Vermont superior
and district courts and whose cases were, or would be, affected by
Administrative Directive 17. Plaintiffs asked the court to declare the
Directive invalid and to direct the restoration of civil jury trial cases to
the affected calendars. Defendants were the Supreme Court itself, the
justices in "their individual administrative capacities," the Court
Administrator, and each superior and district court clerk.
The evidence before the superior court was sparse. There was no
testimony on the effect of the moratorium on the individual plaintiffs or on
the average length of time between readiness for trial and the trial date.
There was no proof that any of the plaintiffs sought, as was explicitly
permitted, an exception from the order for their individual cases. An
expert witness for the plaintiffs testified that the moratorium would have a
significant detrimental effect on the lives of many of the plaintiffs
because they will forego needed health care in order to take care of
themselves and their families. Administrative Judge Stephen B. Martin
testified that of the approximately 400 cases at issue, only a relatively
few would be set under the exceptions clause in Administrative Directive 17.
He also emphasized that after the moratorium expired on July 1, 1990, an
emphasis would be placed on jury work so that he expected any delay in
holding jury trials would disappear by January 1, 1991.
Upon completion of the evidence, the trial court granted defendants'
motion to dismiss on a number of grounds, including that the superior court
lacked authority to grant relief in the nature of mandamus as to an order of
the Supreme Court. Although the court did not reach the issue of
constitutionality, it concluded that the Directive did not create a blanket
moratorium. The present appeal followed.
In addition to the appeal from the superior court decision, the same
plaintiffs filed an original action in this Court, Docket No. 90-102,
seeking extraordinary relief pursuant to V.R.A.P. 21 and a declaration that
the civil jury moratorium was unconstitutional. The complaint described the
circumstances of the individual plaintiffs. In two cases, the complaint
alleged that a request for an exception from the moratorium had been made
but not acted upon. In one case, the complaint alleged that such a request
had been denied.
The defendants in this action were the Court and its members "in their
individual administrative capacities." In an earlier opinion, this Court
denied a motion to disqualify members of the Court from sitting on the case
and dismissed the claim against the Justices of the Court as individual
parties. We consolidated the appeal in No. 90-122 and the petition for
extraordinary relief in No. 90-102 for hearing on May 14, 1990.
Before addressing the specific issues raised by petitioners, it is
helpful to set out what this case is not about. At argument, the
petitioners asserted that this Court has the inherent power to order the
Legislature to appropriate money for "reasonably necessary" expenditures of
the Judiciary and could have done so in this case. See Note, The Courts'
Inherent Power to Compel Legislative Funding of Judicial Functions, 81
Mich. L. Rev. 1687 (1983); see also In re Union County Judicial Budget
Impasse, 87 N.J. 1, 2, 432 A.2d 807, 807 (1981) (following hearing before
fact-finding panel, Supreme Court directed county board to amend budget of
county judiciary to implement recommendations approved by the court). While
this proposition may be true, no party has sought to bring the legislative
or executive branches into this controversy, and the complaints are solely a
challenge to this Court's power to issue the Administrative Directive.
Thus, the power of the Legislature or of the Governor to reduce the
Judiciary's budget is not before us.
Similarly, there is no dispute about the emergency and temporary
circumstances that brought about Administrative Directive 17. A retroactive
reduction in appropriation to support the courts necessarily means that
there must be an immediate reduction in expenditures in some way. On the
other hand, as the administrative judge testified, the Directive under
challenge is effective only until July 1st, and scheduling after that date
can shortly bring the processing of civil jury trials to the point where it
would have been if the Directive had not been issued. Thus, this case
involves a temporary delay in the availability of civil jury trials, not
either a permanent waiting period between readiness for trial and the start
of trial or a denial of jury trial.
Having eliminated what is not before us, we can focus on what is before
us. For this purpose, we will treat the case before us as the petition for
extraordinary relief filed directly in this Court. Except to draw from its
limited record, the parties have all but ignored the appeal from the
superior court dismissal, which as we indicated above, was not on the merits
of the case. Since the superior court appeal adds nothing to petitioners'
arsenal, it is unnecessary to treat the jurisdictional and procedural issues
raised therein.
At issue in this case are the scope and meaning of the two Vermont
constitutional provisions that relate to the availability of civil jury
trials in the State. Chapter I, Article 12 of the Vermont Constitution
provides as follows:
That when any issue in fact, proper for the
cognizance of a jury is joined in a court of law, the
parties have a right to trial by jury, which ought to be
held sacred.
Chapter II, { 38 of the Constitution provides: (FN1)
Trials of issues, proper for the cognizance of a Jury
as established by law or by judicial rules adopted by
the Supreme Court not inconsistent with law, in the
Supreme Court, the Superior Court and other subordinate
courts, shall be by Jury, except where parties otherwise
agree; and great care ought to be taken to prevent
corruption or partiality in the choice and return, or
appointment of Juries.
The central substantive question before this Court is whether
Administrative Directive 17 denies the right to trial by jury or fails to
keep it "sacred" as required by Chapter I, Article 12 or Chapter II, { 38.
In order to reach this question, we must find that petitioners are
properly before this Court in their V.R.A.P. 21 petition. Extraordinary
relief is a flexible procedure that provides an avenue "for relief when
other avenues are foreclosed." Crabbe v. Veve Assoc., 145 Vt. 641, 643, 497 A.2d 366, 368 (1985). Thus, the rule specifically requires that the
petitioners demonstrate exhaustion of remedies in the superior court. See
V.R.A.P. 21(b); Byrd v. Kehoe, 136 Vt. 204, 205, 388 A.2d 834, 835 (1978)
(per curiam). Petitioners have demonstrated that the avenue of bringing
this case to the superior court is foreclosed since their attempt to do so
was dismissed. Most, however, have not attempted the alternative avenue of
seeking an exception from the moratorium from the administrative judge.
Indeed, many of the petitioners admit their case is not ready for trial so
no relief from the administrative judge could be available.
Petitioners argue that they were not required to seek relief from the
administrative judge because the mere existence of Administrative Directive
17 interferes with their protected right, and, in addition, the exception
process is standardless and too limited to be an effective remedy. We have
been unwilling in the context of reviewing administrative rules to allow a
general attack on the validity or application of a rule to be made when
fact-specific review through a designated procedure is available. See
Petition of D.A. Assoc., 150 Vt. 18, 19, 547 A.2d 1325, 1326 (1988)
(declaratory ruling by agency commissioner on meaning of rule is not
available as substitute for appeal of a specific condition contained in
permit issued under the rule). We have required exhaustion of a
discretionary exception process when plaintiffs were making a constitutional
attack on a statute, and have been unwilling to accept the characterization
of the exception process as a "futile gesture." See Choquette v. Perrault,
144 Vt. 218, 223, 475 A.2d 1078, 1081 (1984) (attack on constitutionality of
Vermont fence viewer law); see also Aiken v. Malloy, 132 Vt. 200, 214, 315 A.2d 488, 496-97 (1974) (persons challenging due process protections where
driver's license suspension was sanction for nonpayment of poll tax were
required to exhaust potential remedy before town board for abatement of
taxes).
We also believe that the petitioners overstate the effect of the
Administrative Directive. We fail to see, for example, how the mere
existence of the Directive affects the rights of those whose cases are not
ready for trial. The courts are fully open to them for any pretrial
proceedings and they can engage in discovery and pretrial preparation. It
is entirely speculative that their cases would come to trial any later than
if the Directive never existed. More broadly, we have held in another
context that a claim of unnecessary delay in the disposition of a court
action requires a showing of prejudice. State v. Dean, 148 Vt. 510, 515,
536 A.2d 909, 913 (1987); see also State v. Hall, 145 Vt. 299, 307, 487 A.2d 166, 171 (1984) (delay on appeal is a denial of due process only when
litigant shows substantial prejudice based on "concrete, practical
considerations, rather than vague speculation"). While this holding
interprets Chapter I, Article 10 ("speedy . . . trial"), Chapter I, Article
4 ("Every person . . . ought to obtain right and justice . . . promptly and
without delay") and Chapter II, { 28 ("justice shall be . . . administered,
without . . . unnecessary delay"), we see no reason why petitioners would
have any less burden in this case. We do not see how petitioners can show
prejudice if they decline to use an avenue that may give them the jury trial
they seek.
Although most of the petitioners did not allege that they sought relief
from the administrative judge, and many admitted that such relief could not
be sought because their case was not ready for trial, three petitioners
alleged that they requested an exception from the administrative judge. One
of these was denied relief. Since no evidence has been taken in this case
and we are dealing, in effect, with a motion to dismiss, we reach the merits
of whether a claim for relief has been stated for these three petitioners.
In short, petitioners' position is that a jury trial delayed is equal
to a jury trial denied for purposes of the Vermont Constitution. In this
case, at least, in the context of a temporary moratorium for the time
involved, with an exception from the moratorium available where justice
requires, we reject this position.
Our precedents do not support the absolutist view of the jury trial
right that the petitioners espouse. Vermont courts have long exercised the
power to adopt administrative rules having an incidental effect on the
availability of jury trials in some cases. In Jones v. Spear, 21 Vt. 426
(l849), defendant debtor protested a county court rule conditioning the
right to jury trial upon the furnishing of an affidavit that a money claim
was disputable. This Court upheld the rule and rejected the claim that it
resulted in denial of the jury trial right:
In England, where the right of trial by jury is
acknowledged to quite as enlarged an extent as in this
country, there are many kinds of defences, (which are
considered as technical, and not favored,) which the
rules of the courts will not permit to be made, unless
the party interposing them will make an affidavit of the
truth of such defence, and that the same will be made to
appear on trial. And in many of the states, whose
constitutions contain similar provisions with ours,
their courts have rules like those of the English
courts; -- but in neither country has it ever been
supposed, that the right of trial by jury was thereby
impaired or trenched upon.
Id. at 430. In Plimpton v. Town of Somerset, 33 Vt. 283, 290 (1860), the
Court stated that an act is unconstitutional with respect to juries if it
"destroys or materially impairs the right of trial by jury according to the
course of the common law."
The most significant of our early cases is Lincoln v. Smith, 27 Vt. 328
(1855), where the plaintiff challenged the lack of a twelve-person jury in
a justice of the peace court. The Court held that the availability of a
jury on appeal in the county court cured any deficiency. It reasoned:
[I]t is quite well settled, that if a legislature pass
an act giving to a justice of the peace power to hear
and decide a cause, without the intervention of a jury,
but the act gives the right of appeal to a court which
tries causes by a jury, it is no such violation of the
right of trial by jury, as to render the act
unconstitutional; although had the judgment of the
justice been final, it might have been. Though the
party may be put to some expense and inconvenience, yet
the right is not taken away, or so far impaired as to
render the act void. The right of appeal is not so
trammelled . . . as to clog the exercise of the right,
so as to render its enjoyment unreasonable and
oppressive.
Id. at 361 (emphasis added). The clear import of Lincoln is that
preconditions to the jury trial right that delay its exercise are not per se
unconstitutional.
Although Lincoln is an early precedent, cases from other states show
that its principles have continuing vitality in addressing modern problems.
Thus, in Pittsburgh Corning Corp. v. Bradley, 499 Pa. 291, 453 A.2d 314
(1982), the Supreme Court of Pennsylvania upheld a court rule requiring
plaintiffs in asbestos-related tort cases to first go to trial before a
judge in a nonjury trial, after which either party could have a de novo jury
trial. The Court held that the requirement to go first to trial before a
judge did "not unduly burden the parties' right to a trial by jury" in light
of the high volume of pending asbestos-related cases. Id. at 298, 453 A.2d
at 317. Similarly, the Maryland Court of Appeals upheld a statute requiring
medical malpractice plaintiffs to go first through nonbinding arbitration
before receiving a jury trial, despite the burden on access to the courts
and the jury trial right. Attorney General v. Johnson, 282 Md. 274, 300,
385 A.2d 57, 72-73 (1978). This decision relies on an early Maryland
decision, Steuart v. Baltimore, 7 Md. 500, 512 (1855), which is comparable
to our decision in Lincoln v. Smith. The court also quoted language from
another early case to the effect that "'legislation . . . which merely
points out the mode of arriving at this object, but does not rob the right
of its essential ingredients, cannot be considered an infringement of the
right.'" Id. at 301, 385 A.2d at 73 (quoting Knee v. City Passenger Ry.
Co., 87 Md. 623, 633, 40 A. 890, 894 (1898)).
The decisions in Jones v. Spear, Plimpton v. Town of Somerset and
Lincoln v. Smith do not support a holding that a temporary delay in access
to a civil jury trial equals a denial of the right. Indeed, they are
directly contrary to petitioners' position and, as the recent decisions from
other states show, support the view that actions that may delay or condition
the jury trial right do not by themselves infringe on that right.
There are other significant impediments to petitioners' position. As
we noted above, we have required a showing of prejudice in a claim that
delay in litigation denied rights under the Vermont Constitution. See State
v. Dean, 148 Vt. at 515-16, 536 A.2d at 911. As the cases involving the
speedy trial right demonstrate, it is impossible to codify inflexible delay
rules, even in criminal cases. The United States Supreme Court emphasized
in Barker v. Wingo, 407 U.S. 514, 521 (1972) that it is impossible to
"definitely say how long is too long in a system where justice is supposed
to be swift but deliberate." The difficulties in determining the outer
limits of permissible delay are even greater in civil cases.
Delay per se is not unconstitutional; it may become such
only when an injured plaintiff, ready and eager for
trial, or a defendant, seeking vindication and himself
ready for trial, are denied for too long his day in
court. If a five year delay in a civil action reflects
simply the parties' utilization of pre-trial discovery
or settlement negotiations there is no constitutional
violation. To codify the myriad relevant elements into
timetables of general application having constitutional
force may well be impossible.
Ad Hoc Committee on Judicial Administration v. Commonwealth of Mass., 488 F.2d 1241, 1244 (1st Cir. 1973).
There have been periods in our history when clogged dockets in our
superior court meant that a litigant would wait for a trial date far longer
than the same litigant would wait today. Although we have no specific
record on this point, we believe that it is likely that the petitioners in
this case will have the opportunity to go to jury trial sooner than they
would have during periods in the past despite the delay occasioned by
Administrative Directive 17. The remedy they seek, however, is the instant
access to a jury. Such a remedy cannot be found in the constitutional jury
trial rights on which they rely. Petitioners have failed to show specific
prejudice or that their trials are being delayed unreasonably. Caseloads
cannot be managed on the simplistic position that everyone is entitled to an
immediate trial whenever they are ready for one.
Finally, we note that we have given broad authority to trial judges to
manage dockets to do justice for all the litigants. Under V.R.C.P. 40(a)(1)
a presiding judge can advance or specially assign cases for trial. Sche-
duling orders are authorized, and are routinely used, to move cases to
trial at a rate tailored to the particular case. See V.R.C.P. 16.2. The
United States Court of Appeals for the Second Circuit noted:
Nonetheless, the fact remains that the calendars of the
. . . [d]istrict court are clogged and justice is being
delayed or perhaps impaired as a result. In order to
reduce this choking congestion, the district courts must
be permitted to exercise their discretion in appropriate
ways that will ensure justice to all who seek it. We
will not interfere with the conscientious judge who will
not accept the status quo of calendar congestion.
Davis v. United Fruit Co., 402 F.2d 328, 331-32 (2d Cir. 1968) (footnote
omitted). Exercising the broad discretionary power we have given to the
trial judges, the superior court in Chittenden County recently decided it
would devote a term of court primarily to hearing family cases. Jury trials
were necessarily, although incidentally, delayed in that county.
Petitioners appear to accept the inevitability of court congestion
brought on by inadequate judicial resources and the actions of trial courts
to manage limited resources in the face of overwhelming demand. They would,
however, deny this Court the same power to manage limited resources when the
limitation comes in response to budget cuts, the existence and authority for
which they have not challenged. These are distinctions without significant
or meaningful differences.
Under Chapter II, { 30 of the Vermont Constitution, the Supreme Court
has "administrative control of all the courts of the state." Chapter II, {
37 requires us to "make and promulgate rules governing the administration of
all courts." Court administration necessarily involves managing judicial
resources with effects good and bad on the litigants who use our courts.
The real defect in Administrative Directive 17, according to
petitioners' argument, is that it directly and visibly moves resources
between types of cases to the disadvantage of their particular cases.
Presumably, they would find it acceptable to cut judicial staff with the
same resulting delays because then there would be an indirect but not direct
effect on the jury trial right. We fail to see how one action can be
constitutional and the other not, if access to jury trials is temporarily
delayed in either case. More important, such a constitutional doctrine
would reward management by indecision and inaction, with an overall loss to
the system. It would encourage this Court to take actions that are the
least visible to the public who use our courts instead of forthrightly and
publicly responding to a shortage of resources in a way that is accountable
to the citizens of this State. We cannot accept poor judicial management
that is commanded by artificial distinctions on which petitioners rely.
There remains only to consider the main precedent relied upon by
petitioners, Armster v. United States District Court for the Central
District of California, 792 F.2d 1423 (9th Cir. 1986), holding that that
district court and the district court for the district of Alaska could not
constitutionally suspend civil jury trials because of fiscal constraints.2
Armster appears at first blush to proclaim a Seventh Amendment civil jury
trial right which is infringed by the slightest diminution:
We must vigilantly protect the right to civil jury
trials, and we must scrutinize in the most rigorous
manner possible any action that appears to limit in any
way the availability of that right.
* * *
We conclude that the availability of constitutional
rights does not vary with the rise and fall of account
balances in the Treasury. Our basic liberties cannot be
offered and withdrawn as "budget crunches" come and go,
nor may they be made contingent on transitory political
judgments regarding the advisability of raising or
lowering taxes, or on pragmatic or tactical decisions
about how to deal with the perennial problem of the
national debt. . . . Rather, our constitutional rights
are fixed and immutable, subject to change only in the
manner our forefathers established for the making of
constitutional amendments.
Id. at 1429 (emphasis added). The court goes on to hold, however, that it
is not the moratorium per se that offends the Seventh Amendment, but the
length of the moratorium:
Specifically, we conclude that the seventh amendment
right to a civil jury trial is violated when, because of
such a suspension, an individual is not afforded, for
any significant period of time, a jury trial he would
otherwise receive. We do not suggest that a suspension
of any duration whatsoever would be constitutional. We
need only decide here that a suspension for a signifi-
cant period is barred by the seventh amendment. . . .
[W]e believe three and a half months constitutes far
more than a significant period, given the mandate of the
seventh amendment.
Id. at 1430 (emphasis added). The Armster court appeared at first to treat
the deferral of jury trials in the case before it as a power that had been
exercised without the need for justification, not as an option chosen in the
face of competing claims to judicial resources or limited funding. The
court's apparent response was to declare invalid any action that appeared to
limit the civil jury trial right "in any way." However, in its holding it
conceded that the civil jury right might be limited according to a
reasonableness standard not unlike that in Barker v. Wingo.
The cases following Armster do not contribute to our analysis. The
court in Hobson v. Brennan, 637 F. Supp. 173 (D.D.C. 1986) found that the
Seventh Amendment prevailed over a directive of the federal Judicial
Conference directing an indefinite suspension of the civil jury trial in the
case before the court. The court in Odden v. O'Keefe, 450 N.W.2d 707 (N.D.
1990) (per curiam), faced with an eighteen-month delay in civil jury trials,
found "the rationale of Armster . . . to be persuasive to the extent that it
prohibits a blanket moratorium on civil jury trials for a significant period
of time." Id. at 709 (emphasis added).
Armster and the decisions relying on it are distinguishable because
they deal with blanket moratoria and, in the case of Odden, a far longer
time period. We also cannot accept the analysis that the jury trial right
is infringed when access to juries is delayed a relatively short period of
time. See Bunge, Congressional Underappropriation for Civil Juries:
Responding to the Attack on a Constitutional Guarantee, 55 U. Chi. L. Rev.
237, 267 (1988) ("The Armster court's creation of a speedy civil jury trial
right lacks textual and precedential support and should not be used as a
basis for challenging congressional underfunding of civil juries").
Finally, we are relying on our own settled interpretations of the nature of
the right to trial by jury under the Vermont Constitution. These
interpretations do not necessarily apply to the Seventh Amendment to the
United States Constitution, which is not applicable to the states.
Docket No. 90-122 is affirmed; in docket No. 90-102 the petition for
extraordinary relief is dismissed.
FOR THE COURT:
Chief Justice (Ret.)
Specially Assigned
FN1. Though not cited by petitioners, Chapter I, Article 4 of the Vermont
Constitution is also relevant:
Every person within this state ought to find a
certain remedy, by having recourse to the laws, for all
injuries or wrongs which he may receive in his person,
property or character; he ought to obtain right and
justice, freely, and without being obliged to purchase
it; completely and without any denial; promptly and
without delay; conformably to the laws.
FN2. The Armster approach has been followed in two other cases, Hobson v.
Brennan, 637 F. Supp. 173 (D.D.C. 1986), citing the briefs in Armster, but
decided before the decision in that case, and Odden v. O'Keefe, 450 N.W.2d 707 (N.D. 1990) (per curiam), which relies on Armster.
________________________________________________________________________________
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, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 90-102
In re Vermont Supreme Court Supreme Court
Administrative Directive No. 17
and Harriet and Donald Smith,
et al. Original Jurisdiction
v.
The Vermont Supreme Court, April Term, 1990
The Honorable Frederic W. Allen,
The Honorable Louis P. Peck,
The Honorable Ernest W. Gibson III,
The Honorable John A. Dooley,
The Honorable James L. Morse,
in their individual administrative
capacities as Justices of the
Vermont Supreme Court
John F. Evers of Langrock Sperry Parker & Wool, Middlebury, Jerome F.
O'Neill of O'Neill and Crawford, Burlington, and Deborah T. Bucknam, St.
Johnsbury, for petitioners
Jeffrey L. Amestoy, Attorney General, and Marilyn Signe Skoglund, Assistant
Attorney General, Montpelier, for respondents.
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
PER CURIAM. On January 11, 1990, this Court issued Administrative
Directive No. 17, which stated as follows:
The resources available to the Judiciary
have been drastically reduced for the
remainder of the fiscal year 1990.
Accordingly, each superior and district court
judge and clerk is hereby ordered to postpone
until after July 1, 1990 any civil jury case
for which the jury has not yet been drawn.
The administrative judge is hereby
authorized to permit the trial of any given
case where justice requires, but it is
envisioned that nearly all civil jury cases
will be delayed.
Plaintiffs are litigants whose cases are pending in the superior and
district courts. On March 5, 1990, they brought a petition for
extraordinary relief pursuant to V.R.A.P. 21, asserting that Directive No.
17 violates their rights under the Vermont and United States Constitutions
and seeking relief "ordering that the Supreme Court Justices, acting in
their administrative capacities, and the Supreme Court itself, in its
administrative capacity," rescind the order and declare it to be
unconstitutional.
On March 12, 1990, we ordered plaintiffs to file a memorandum stating:
(l) why this action should not be dismissed as to the justices of this Court
in their individual administrative capacities; and (2) whether this question
may be decided by a court consisting of members who are named as defendants
Bin this action. Plaintiffs responded by filing a motion to disqualify all
current members of the Court because: (a) the Court promulgated
Administrative Directive No. 17 which is the subject of this challenge; and
(b) the members of the Court are named as defendants in this action. This
opinion addresses only the motion to disqualify. Because all members of the
Court are challenged, it is being decided by the active members of the
Court, without regard to whether such Justices would otherwise be
disqualified. (FN1) We deny the motion to disqualify.
Plaintiffs' first ground for disqualification is that because the Court
promulgated Administrative Directive No. 17, our participation in the
challenge to its validity would violate Canons 1 and 2 of the Code of
Judicial Conduct, A.O. 10. Plaintiffs argue that our sitting on this case
would fail to uphold "the integrity and independence of the judiciary" in
violation of Canon 1 and would create an appearance of partiality and
impropriety in violation of Canon 2. Although this claim has superficial
appeal, we do not believe it can withstand analysis.
As this case vividly demonstrates, state Supreme Courts have a range of
powers and responsibilities in governing the judicial branch of government
and adjudicating controversies. The directive involved in this case was
issued pursuant to our "administrative control of all the courts of the
state," as provided in Chapter II, { 30 of the Vermont Constitution. See
also Vt. Const. Ch. II, { 37 (rule-making power "governing the
administration of all courts"). We are also required to "make and
promulgate rules governing practice and procedure in civil and criminal
cases in all courts." Id. Finally, we must exercise "appellate
jurisdiction in all cases, criminal and civil" as well as original
jurisdiction where provided by law. Vt. Const. Ch. II, { 30. Plaintiffs'
position is that whenever we take an action pursuant to our governance
powers, we are ethically barred from adjudicating legal challenges to that
action.
We find nothing in the Canons that requires recusal in this instance,
and other courts that have considered such claims have rejected them. In
Mississippi Publishing Corp. v. Murphree, 326 U.S. 438 (1946), the United
States Supreme Court considered whether Rule 4(f) of the Federal Rules of
Civil Procedure was valid within the Court's rule-making power. The Court
held that the rule was valid. It noted that the fact that it promulgated
the rules did not "foreclose consideration of their validity, meaning or
consistency." Id. at 444. More recently, in Mistretta v. United States,
109 S. Ct. 647 (1989), the Court considered whether judicial participation
on United States Sentencing Commission violated the constitutional principle
of separation of powers. The Court held that it did not offend the
separation of powers and, in the process, commented on the ability of judges
on the commission to sit on cases involving sentencing guidelines:
We see no reason why service on the Commission should
result in wide-spread judicial recusals. That federal
judges participate in the promulgation of guidelines
does not affect their or other judges' ability
impartially to adjudicate sentencing issues. Cf.
Mississippi Publishing Corp. v. Murphree, 326 U.S. 438
(1946)(that this Court promulgated the Federal Rules of
Civil Procedure did not foreclose its consideration of
challenges to their validity).
Id. at 672.
The analysis of the Supreme Court has been followed in the state
courts. In Berberian v. Kane, 425 A.2d 527, 528 (R.I. 1981), the Rhode
Island Supreme Court held that it could sit on a constitutional challenge to
its rule providing for an annual lawyer-licensing fee and that such a
challenge could go forward. It concluded that wholesale disqualification of
the Court would "render the rule-making process self-defeating and
nugatory." Id. Similarly, in Board of Overseers of Bar v. Lee, 422 A.2d 998
(Me. 1980), the Maine Supreme Judicial Court sat on a challenge to its
lawyer-licensing fee. It found the procedure unusual but not without
precedent. Id. at 1001. It likened the process to a litigant's challenge
to an advisory opinion issued by the justices pursuant to the specific
authority of the Maine Constitution.
A case with some similarities to this case is Ex parte Farley, 570 S.W.2d 617 (Ky. 1978), in which the Kentucky Public Advocate (public
defender) sued the Justices of the Kentucky Supreme Court "both individually
and collectively" to gain access to records of death penalty cases being
held by the Administrative Office of the Courts for the Supreme Court. The
Supreme Court had already refused to release the records to plaintiff. The
Court refused to disqualify itself, likening the proceeding to a "rehearing
of a case in which [the judges] have rendered an opinion." Id. at 623.
The Maine and Kentucky cases rely on one of two major reasons why
there is no ethical objection to our sitting in this case. A court or
judicial officer is often called upon to render an opinion of law on a
matter on which the court or officer has formally rendered an opinion.
Prior knowledge of a legal issue is not grounds to disqualify a judge. See,
e.g., Cipollone v. Liggett Group, Inc., 802 F.2d 658, 659 (3d Cir. 1986).
The Reporter to the Code of Judicial Conduct wrote about the ability of
judges to comment on the law as follows:
[A] judge may write or lecture on a legal issue,
analyzing the present law or its history, its virtues
and its shortcomings; he may commend the present law or
propose legal reform without compromising his capacity
to decide impartially the very issue on which he has
spoken or written.
E. Thode, Reporter's Notes to Code of Judicial Conduct 74 (1973). If prior
knowledge or commitment on a legal issue would disqualify us, we would be
unable to function as the highest Court of a state. Many of the matters
that come before us involve issues on which one or more of us have rendered
relevant opinions.
At base, this case involves an issue of law DD that is, the
constitutionality of a jury moratorium. Plaintiffs have not taken issue
with the factual basis behind the moratorium. Instead, they challenge the
ability of the Court to impose a moratorium under any circumstances. The
fact that we may have taken a position on the issue does not preclude us
from deciding it anew.
Another reason relates to the way we necessarily perform our
administrative and rule-making functions. In response to proposed
amendments to federal criminal and civil rules he found unwise, Justice
Black emphasized that
I am reasonably certain, however, that the Court's
transmittal [of the rules to Congress] does not carry
with it a decision that the amended rules are all
constitutional. For such a decision would be the
equivalent of an advisory opinion which, I assume the
Court would unanimously agree, we are without
constitutional power to give.
Statement Accompanying Amendments to the Federal Rules of Civil Procedure,
383 U.S. 1031, 1032 (1966). If this Court were required to determine in
vacuo by a kind of advisory opinion and without the aid of briefing and
argument that every procedural or administrative rule which we adopt is
valid from every standpoint, rule-making as provided in the Constitution
would effectively cease. See Statement of Judge Albert Maris of the United
States Court of Appeals for the Third Circuit, in testimony to Congress on
the Federal Rules of Evidence, quoted in Fisher v. Hatcher, 44 Mich. App.
541, 551 n.13, 205 N.W.2d 913, 918 n.13 (1973)(Levin, J., concurring). The
fact is that our promulgation of the Administrative Directive is not a prior
determination that it is valid and constitutional. That determination must
await the adjudication in this or a future case.
We have a recent example of the process of challenge to rules of this
Court in Dingemans v. Board of Bar Examiners, ___ Vt. ___, 568 A.2d 354
(1989). In that case, this Court struck down the citizenship requirement of
Rule 6(f) of the Rules of Admission to the Bar of the Vermont Supreme Court,
as promulgated by this Court. We found the rule to constitute a burden on
the federal immigration program so as to violate the Supremacy Clause of the
United States Constitution. Id. at ___, 568 A.2d at 357.
Nor do we find plaintiffs' claim valid when it is phrased in terms of
"appearance of impropriety" or by stating that our "impartiality might
reasonably be questioned." See Canon 3C(1) of the Code of Judicial Conduct.
We agree with Professor Leubsdorf's analysis of the use of this kind of
standard:
The reasonable-appearance-of-injustice test, however,
distracts judges, legislators, and commentators from
clarifying what is and is not unjust. If real
objections can be found to a judge's sitting, those
objections provide sufficient reason to disqualify. If
analysis dispels plausible objections, judges should
remove the appearance of injustice by explaining why the
objections fail. But an appearance test shifts
attention away from what objections are valid to what
objections might appear valid to a reasonable observer
who has not wrestled with the problem. The reasonable
person may be a better guide for driving a car than the
thinking judge, but not for deciding whether it is
unjust for a judge to hear a case. The appearance test
invites judges to rest on appearances, instead of
looking deeper.
Leubsdorf, Theories of Judging and Judge Disqualification, 62 N.Y.U. L. Rev.
at 278. Although an appearance standard has a place in our law, Richard v.
Richard, 146 Vt. 286, 288, 501 A.2d 1190, 1191 (1985), it is important that
it not be overused to the point where "recusals would only serve to
undermine public confidence in the impartiality of all judges." State v.
Hunt, 147 Vt. 631, 632, 527 A.2d 223, 224 (1987) (a memorandum decision by
two justices in which they granted defendant's motion for recusal). Because
of the importance of this case to our jurisprudence and the nature of this
institution, it is critical that we wrestle with the problem, as Professor
Leubsdorf urges, and look closely at our ethical and constitutional
obligations. When we do so, we believe that disqualification of the Court
would be inappropriate.
Plaintiffs put great weight on the fact that there is no necessity for
us to sit on this case because 4 V.S.A. { 22 allows the appointment of
substitute justices for those who are disqualified. We disagree with
plaintiffs' assertion that the principle of necessity does not apply in this
case. The principle has been used in cases in other states to avoid a
disqualification of an entire appellate court. See, e.g., Commonwealth v.
Loretta, 386 Mass. 794, 797, 438 A.2d 56, 58 (1982); Grinnell v. State, 121
N.H. 823, 825-26, 435 A.2d 523, 525 (1981). This principle has likewise
been recognized in this state. In State v. Batchelder, 6 Vt. 479 (l834)
this Court held that a justice of the peace, who was a taxpayer in the town
to which the penalty in a criminal case was payable, was not disqualified
because of interest in the case. The Court stated:
Nothing is more true in theory, than that
every judge or justice who tries a cause,
should not have the slightest interest in its
determination, and nothing more true in fact
and in practice, than that, as it respects
state cases in general, there is no such judge
or justice in Vermont. Still criminal justice
must be administered.
Id. at 486-487. (Emphasis supplied.)
Application of necessity principles where all members of a court are
challenged by the same motion is well enunciated in Ex parte Farley, where
the Kentucky Supreme Court stated its own qualifications to hear the
merits:
The petitioners apparently are of the
impression that courts, as such, including of
course this court, can be sued and that the
judge or judges of the defending court are
disqualified by reason of interest. We do not
think so, in this jurisdiction at least. The
function of a court is to resolve disputes,
and it cannot have an interest or be an
adversary party in a proceeding carried on
within its own system. And if in this case
now before it the court could be regarded as
an adversary of the petitioners, how would
matters be any different if its regular
members saw fit to vacate the bench? The
special members appointed temporarily to
replace them would still constitute that same
court and, perforce, they too would be
disqualified.
570 S.W.2d at 623. The issue is also explored in Morgenthau v. Cooke, 56 N.Y.2d 24, 29-31 n.3, 436 N.E.2d 467, 469 n.3 451 N.Y.S.2d 17, 19 n.3
(1982), a case involving the failure to obtain approval from the New York
Court of Appeals for a judicial assignment policy. The Court held that it
must sit on such a case despite "some personal discomfiture to members of
the court," because using substitutes for all members of the Court would
turn the substitutes into the Court of Appeals. Id. Thus, the Court stated
that as a matter of necessity the Justices were required "to execute the
duties of our judicial offices." Id.
Since the actions challenged in this proceeding were taken in our
official capacity as the Vermont Supreme Court, the asserted
disqualification to act cannot be eliminated simply by a temporary
reconstitution of the Court. We see nothing in the Constitution that allows
us to abdicate our fundamental obligations under Chapter II, {{ 29 and 30 in
this way. In reaching this conclusion, we are also mindful that under the
statute, 4 V.S.A. {22, the substitute Court is selected by the Chief Justice
and is often not accountable through judicial retention because the members
of the Court have retired. While substitution may eliminate any question of
bias, it leaves the most fundamental questions about the Court and its
powers to persons whose selection and retention are not tested by
constitutional processes.
The second reason plaintiffs rely upon to disqualify the Court is that
each of us is named as a party, and Canon 3C(1)(d)(i) of the Code of
Judicial Conduct requires recusal of a judge who is a party to a proceeding.
Plaintiffs admit in their filings that we are nominal parties, named only
because we promulgated the Administrative Directive which they challenge.
Indeed, plaintiffs state that the "naming the five members of the Court has
no bearing on the substantive issues in this case nor on whether the five
individual justices who signed Administrative Directive No. 17 can decide
any of the issues in this case."
A judge cannot be disqualified merely because a litigant sues or
threatens to sue him or her. We can not encourage such an easy method of
disqualification. See Matter of Ronwin, 139 Ariz. 576, 680 P.2d 107, 117
(1983)(en banc). As the Supreme Court of Kansas emphasized, a
disqualification in such circumstances would nullify our duty and "permit
manipulation of the court." State v. Rome, 235 Kan. 642, 650, 685 P.2d 290,
296 (1984). The recusal provision of the Code does not apply to every case
where the judge is a party. See, e.g., Anderson v. Roszkowski, 681 F. Supp. 1284, 1289 (N.D. Ill. 1988)(decided under analogous provisions of federal
law); In re Martin-Trigona, 573 F. Supp. 1237, 1243 (D. Conn. 1983), appeal
dismissed, 770 F.2d 157 (2d Cir. 1985). It does not apply in a case like
this where the judges are nominal parties and there is no allegation of
personal bias or interest.
The motion to disqualify is denied.
________________________________________
Frederic W. Allen, Chief Justice
________________________________________
Louis P. Peck, Associate Justice
________________________________________
Ernest W. Gibson III, Associate Justice
________________________________________
John A. Dooley, Associate Justice
________________________________________
James L. Morse, Associate Justice
FN1. The rule on motions for disqualification provides that the challenged
justices will sit when two or more justices are challenged. See V.R.A.P.
31(e)(2). In any event, the rule was drafted in reference to the grounds
for disqualification contained in Canon 3C of the Code of Judicial Conduct.
See Reporter's Notes to 1987 Emergency Amendment to V.R.A.P. 31(e). These
grounds are aimed at situations where a judge has a bias or interest. This
is not a traditional bias or interest case, but instead involves the
assertion that the exercise of one of the Court's constitutional
responsibilities ethically precludes it from exercising another
constitutional responsibility. It is a clear example of the point that:
"[t]o decide when a judge may not sit is to define what a judge is."
Leubsdorf, Theories of Judging and Judge Disqualification, 62 N.Y.U. L. Rev.
237, 237 (1987). When we are defining the essential nature of this Court,
it is imperative that the active members of the Court provide that
definition.
With respect to the merits and all other aspects of this proceeding,
Chief Justice Allen and Justice Peck have recused themselves.
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