In re J.G.

IN_RE_JG.93-119; 160 Vt. 250; 627 A.2d 362


 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-119


 In re J.G., Juvenile                         Supreme Court


                                              Original Jurisdiction


                                              March Term, 1993


 Pamela Marsh of Nuovo & Marsh, Middlebury, for petitioner

 William Keefe, Addison County Deputy State's Attorney, Middlebury, for
   respondent


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      DOOLEY, J.   Seventeen-year-old juvenile, who admitted to the
 underlying offense of petty larceny and to being a delinquent, seeks
 permission to appeal from a decision of the family court retransferring the
 matter to district court, pursuant to 33 V.S.A. { 5527(c).  Juvenile's
 request for permission to appeal is premised on State v. Lafayette, 148 Vt.
 288, 292, 532 A.2d 560, 562 (1987), which allowed interlocutory review of a
 collateral order denying transfer of a criminal proceeding to juvenile
 court.  The family court denied juvenile's motion for permission to appeal,
 stating that its transfer decision would be reviewable upon appeal, if any,
 from final judgment in the criminal case.  We grant permission to appeal.
      Before examining the specifics of this case, we address the issue of
 whether juveniles are entitled to interlocutory review of transfer decisions
 as a matter of right.  In Lafayette, we stated that this Court "may have
 jurisdiction" over otherwise unreviewable collateral orders that conclu-
 sively determine important issues unrelated to the merits of the action.
 Id. at 290-91, 532 A.2d  at 561; see Cohen v. Beneficial Industrial Loan
 Corp., 337 U.S. 541, 546-47 (1949).  After discussing whether an order
 waiving juvenile jurisdiction is "effectively reviewable" on appeal from a
 criminal conviction, we held that "when the injustice that would result if
 defendant were erroneously tried as an adult, and thereby denied the
 protections of chapter 12 of Title 33, is balanced against this Court's
 policy of avoiding piecemeal review, the balance clearly militates in favor
 of allowing appeal at this time."  Lafayette, 148 Vt. at 292, 532 A.2d  at
 562.  Thus, the narrow holding of Lafayette is that this Court has
 jurisdiction to review juvenile transfer decisions, and that appeals of such
 decisions will be allowed in situations where injustice would result if the
 defendant were erroneously tried as an adult.
      This narrow reading was confirmed in In re Maple Tree Place, 151 Vt.
 331, 332-33, 560 A.2d 382, 383 (1989), where we stated:
           [W]e are concerned that the limited nature of our
         holding in Lafayette may have been misunderstood.  While
         we set forth specific criteria without which a
         collateral order will not be reviewed by this Court,
         overriding these threshold criteria is our need to
         balance the possible loss of important rights "against
         this Court's policy of avoiding piecemeal review." 148
         Vt. at 292, 532 A.2d  at 562.  Lafayette should not be
         read as an addendum to the Vermont Rules of Appellate
         Procedure, creating a virtual entitlement to review of
         collateral orders.  Lafayette offers appellate redress
         in the small number of extraordinary cases where the
         normal appellate route will almost surely work
         injustice, irrespective of this Court's final decision.
         . . .  Lafayette announced a procedure that will be
         available when strong need is demonstrated.  But it must
         not be seen as a commonplace alternative to normal
         appellate review under the rules.
      In 1990, V.R.A.P. 5.1 was amended by replacing "shall" with "may" to
 make it clear that the court has discretion in deciding whether to allow an
 appeal from a collateral order.  V.R.A.P. 5.1(a); see Lamb v. Bloom, 4 Vt.
 L.W. 46, 46 (January 12, 1993) (Murray v. White, 155 Vt. 621, 587 A.2d 975
 (1991) does not grant entitlement to appeal from denial of summary judgment
 to party claiming qualified immunity, but merely holds that this Court has
 jurisdiction to take such an appeal); In re C.K., 156 Vt. 194, 196, 591 A.2d 57, 59 (1991) (even when challenged order meets all three criteria of rule,
 V.R.A.P. 5.1 does not entitle moving party to review of order).  Further,
 this Court "may" dismiss the appeal at "at any time" upon its own motion or
 a party's motion.  V.R.A.P. 5.1(c).
      By holding that this Court had jurisdiction over an appeal from the
 transfer decision pursuant to V.R.A.P. 3 and 4, Lafayette suggests that
 collateral orders meeting the three-part Cohen test are appealable as a
 matter of right.  148 Vt. at 289, 532 A.2d at 560-61; see State v. Cleary,
 150 Vt. 649, 649-50, 551 A.2d 1201, 1202 (1988) (mem.) (citing Lafayette,
 Court noted that litigant seeking an appeal under collateral order doctrine
 should file a notice of appeal because such appeals are not interlocutory).
 In light of our experience with Lafayette, we now hold that collateral
 appeals are discretionary interlocutory appeals.  To the extent that
 Lafayette or later cases hold that collateral order appeals are
 nondiscretionary and granted as a matter of right, they are overruled. (FN1)
      The suggestion in Lafayette that collateral order appeals are
 nondiscretionary most likely resulted from a reliance on federal case law
 interpreting a federal statute that gives the courts of appeal jurisdiction
 over appeals from "all final decisions" of the district court.  See 28
 U.S.C. { 1291 (1982).  Federal case law appears to hold that collateral
 orders meeting the Cohen test are appealable "final decisions" under { 1291.
 See Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) ("final decision" within
 meaning of { 1291 does not necessarily mean last order to be made in case);
 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170-71 (1974) ({ 1291 does not
 limit appellate review to final judgments that terminate action).  Once
 jurisdiction is established under { 1291 for these types of orders, appeal
 is granted as a matter of right.  See Solimine, Revitalizing Interlocutory
 Appeals in the Federal Courts, 58 Geo. Wash. L. Rev. 1165, 1190 (1990).
      Our jurisdictional scheme for appeals is different from that applicable
 to the federal courts.  The statutes define only the outer contours of our
 appellate jurisdiction.  See 4 V.S.A. { 2(a).   The import of our law is
 that "a final judgment is a prerequisite to appellate jurisdiction unless
 the narrow circumstances authorizing an interlocutory appeal are present."
 Hospitality Inns v. South Burlington R.I., 149 Vt. 653, 656, 547 A.2d 1355,
 1358 (1988) (emphasis added); see In re Hill, 149 Vt. 86, 88, 539 A.2d 992,
 994 (1987) ("The normal mode of judicial review in Vermont is by appeal
 after judgment.").  Unlike the federal system, we have no definitive statute
 that governs when a lower court action is appealable.  Further, this Court
 has "broad authorization" to adopt rules regarding the procedure for taking
 appeals from orders that are not final judgments.  Bloomberg v. Edlund Co.,
 151 Vt. 559, 560-61 n.*, 563 A.2d 995, 996 n.* (1989); see 12 V.S.A. { 2386
 (Supreme Court may provide rules for taking appeals before final judgment).
 Thus, while federal precedents are often helpful and persuasive, they are
 not controlling here.
      We employed the "broad authorization" provided by 12 V.S.A. { 2386 when
 we adopted V.R.A.P. 5.1, which clearly gives both the trial court and this
 Court the discretion to deny collateral order appeals, even when the three-
 part Cohen test is met.  By doing so, we rejected the federal courts'
 nondiscretionary treatment of collateral order appeals.  Although this
 action may appear to be inconsistent with some of the analysis in Lafayette,
 there is no inconsistency between the result of that case and Rule 5.1.
 While an order transferring a juvenile case to criminal court is often a
 critically important decision that affects statutory rights of the accused,
 Lafayette, 148 Vt. at 291, 532 A.2d  at 562, this fact does not convert the
 order into a final judgment.  In re R.L., 495 A.2d 172, 174 (N.J. Super.
 Ct. App. Div.), cert. denied, 508 A.2d 226 (1985).  Many critical issues are
 determined through interlocutory review on a discretionary basis.  Id.  This
 one is no different.  When requesting permission to appeal, the juvenile may
 emphasize the factors that make review appropriate under the given
 circumstances.  If review is indeed appropriate, it is available to prevent
 injustice.
      Based on our experience with Lafayette appeals, we believe that
 handling them on a discretionary basis sufficiently protects the juvenile
 where appropriate without forcing unwarranted delays in the prompt
 administration of justice.  The trial court's discretion in transfer
 decisions is broader than in any other area.  We have refused to set any
 predetermined limits on that discretion, reviewing decisions based solely on
 a hindsight determination of whether the discretion was abused.  See State
 v. Buelow, 155 Vt. 537, 546, 587 A.2d 948, 954 (1990).  Since the
 jurisdictional decision in Lafayette, we have not found in any case that the
 trial court abused its broad discretion in refusing to transfer a criminal
 case to juvenile court.  See id. at 545, 587 A.2d  at 953; State v. Barrette,
 153 Vt. 476, 478, 571 A.2d 1137, 1139 (1990); State v. Lafayette, 152 Vt.
 108, 113, 564 A.2d 1068, 1070 (1989); State v. Smail, 151 Vt. 340, 343, 560 A.2d 955, 957 (1989).  As long as we allow such broad discretion, we strike
 an inappropriate balance of the competing considerations if we take all
 transfer appeals with no evaluation of the merits of the appeal.  Similar
 concerns have prompted several courts to permit only discretionary review of
 juvenile transfer decisions.  See, e.g., In re R.L., 495 A.2d  at 175 (rather
 than final judgment, juvenile waiver order is interlocutory order that may
 be appealed only by leave of court); In re Joseph T., 575 A.2d 985, 987
 (R.I. 1990) (interests involved in juvenile transfer order are better served
 by allowing discretionary review of such decisions upon writ of certiorari
 rather than by granting appeal as matter of right); State v. Circuit Court,
 292 N.W.2d 114, 114 (Wis. 1980) (juvenile transfer orders are appealable
 through discretionary interlocutory review rather than as matter of right).
      In holding that appeals of juvenile transfer decisions are
 discretionary, we must define the considerations that should go into the
 exercise of that discretion.  The crucial inquiry is whether the transfer
 decision will be effectively reviewable.  Lafayette, 148 Vt. at 291, 532 A.2d  at 561.  Deciding this question requires an examination of whether the
 stigma that would result from a public hearing and the potential for
 incarceration outweighs this Court's policy against piecemeal review and the
 injustice that would result from delay of the proceedings on the merits of
 the case.  Id. at 291-92, 532 A.2d  at 562.  A juvenile's interest in
 avoiding the stigma of a public criminal trial and potential incarceration
 would depend, in part, on the age of the juvenile, the nature of the crime,
 and the likelihood of incarceration.  Another consideration is the
 likelihood that the juvenile will have reached the age of eighteen before
 appeal from the criminal case is resolved, which, in the event of a reversal
 of the transfer decision, would effectively prevent adjudication by the
 juvenile court.  See Institute of Judicial Administration -- American Bar
 Association: Juvenile Justice Standards Project, Standards Relating to
 Transfers Between Courts { 2.4, at 53-55 (1980) (criticizing reconstructed
 waiver hearing sanctioned in Kent v. United States, 383 U.S. 541, 564-65
 (1966)); cf. State v. Gilman, 155 Vt. 649, 583 A.2d 84 (1990) (dismissing
 appeal from denial of transfer to juvenile court where 23-year-old defendant
 had committed offenses at age 15).  Thus, the juvenile court's transfer
 decision will depend on the circumstances of each particular case. (FN2)
      We now examine whether the court abused its discretion in denying
 interlocutory review in the instant case.  In re C.K., 156 Vt. 194, 196, 591 A.2d 57, 59 (1991) (standard for review of court's denial of motion to
 appeal under V.R.A.P. 5.1 is whether court abused or withheld its dis-
 cretion).  As noted, the court stated that review of its transfer decision
 would be available in the event of a conviction and a subsequent appeal.
 The question is whether, under the circumstances of this particular case,
 the stigma involved in a public trial, the potential for incarceration, and
 the possibility that juvenile will have no opportunity for adjudication as a
 juvenile in the event the transfer decision is reversed on appeal from
 criminal conviction outweighs the public interest in the prompt adminis-
 tration of criminal matters and this Court's interest in avoiding piecemeal
 review.  Upon review of the record, we conclude that the interlocutory
 review should have been granted.
      Juvenile, who turned seventeen on the date of the disposition hearing,
 had lived independently without financial support of his parents for the
 year preceding the hearing.  He is charged with petty larceny, a
 misdemeanor.  There is little likelihood of a jail sentence.  The decision
 to transfer the case to district court was based primarily on the court's
 concerns over assuring that restitution would be paid.  Although these facts
 suggest a relatively lessened concern for the stigma of a public trial or
 the potential for incarceration, interlocutory review is appropriate because
 juvenile will turn eighteen in less than a year and reversal of the transfer
 decision might well result in the impossibility of an acceptable remedy.  An
 appeal at this juncture will also serve to resolve juvenile's argument
 that, in light of the withdrawal of his admission to the offense of petty
 larceny and to being a delinquent, the family court's decision to retransfer
 his case to district court violates State v. Charbonneau, 154 Vt. 373, 376,
 576 A.2d 1253, 1254-55 (1990).
      Juvenile's motion for permission to appeal is granted.

                               FOR THE COURT:



                               ____________________________________________
                               Associate Justice




FN1.   We do not intend this statement to apply to the Forgay exception
 adopted in Hospitality Inns v. South Burlington R.I., 149 Vt. 653, 657, 547 A.2d 1355, 1358 (1988).  That exception involves different considerations
 from those resolved in this opinion, and we leave to another day whether
 Forgay appeals should be considered as interlocutory and discretionary.

FN2.    We note that another option for the family court is to grant
 permission to appeal but to deny a stay pending appeal.  See V.R.A.P 5.1(a)
 (if trial judge denies stay pending appeal, moving party may seek stay from
 Supreme Court).  The applicable standard for determining whether a stay of
 the transfer order is appropriate involves the same factors considered for
 issuance of preliminary injunctions: (1) the threat of irreparable harm to
 the movant; (2) the potential harm to the other parties; (3) the likelihood
 of success on the merits; and (4) the public interest.  United States v.
 A.W.J., 639 F. Supp. 1558, 1559 (D. Minn. 1986).