State v. Ross

State v. Ross  (96-306); 166 Vt. 630; 699 A.2d 47

[Filed 10-Jun-1997]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-306

                              APRIL TERM, 1997


State of Vermont                }     APPEALED FROM:
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 2, Franklin Circuit
Robert W. Ross, Jr.,            }
Jason Eric Bessette and         }     DOCKET NO.  150-2-96Frcr
Paul Marshall                   }                 1640-12-96Frcr
(Commissioner of Social and     }                 102-1-96Frcr
Rehabilitation Services, Appellant)


       In the above-entitled cause, the Clerk will enter:

       Appellant Commissioner of Social and Rehabilitation Services (SRS)
  appeals a decision of the district court ordering SRS to disclose its case
  file to the state's attorney in these and all future cases where SRS has
  been involved in a criminal investigation.  We affirm in part and reverse
  in part.

       This appeal was consolidated from three criminal cases, all involving
  sexual misconduct with a minor.  Each defendant was represented by the same
  counsel, who filed a motion to permit inspection and disclosure of a broad
  range of SRS files and records.  A consolidated motion hearing took place
  in which counsel argued that there might be substantial relevant
  information remaining outside of that which the state's attorney had
  already released to the defense.

       The court held a hearing on the motion attended by the state's
  attorney, defense counsel, and counsel for SRS.  Following the hearing, the
  court issued an order providing that:  (1) SRS was to turn over the
  pertinent case files to the state's attorney;  (2) the state's attorney was
  to review the files and make full disclosure to the defendant of all
  information subject to disclosure under Vermont and federal law;  (3) the
  state's attorney could withhold disclosure of information that it believed
  was not discoverable and notify defense counsel of the type of information
  being withheld; (4) defense counsel could file a motion to compel
  disclosure of the withheld information, at which point the court would
  schedule a hearing to review the disputed materials in camera.  The order
  further provided that the disclosure provisions outlined above would apply
  in all "future cases of this type."  The court subsequently denied a motion
  by SRS to reconsider and rescind the order.  This appeal by SRS followed.

       Before addressing the merits we must consider whether the SRS appeal
  is properly before this Court.  We stated in In re F.E.F., 156 Vt. 503,
  507, 594 A.2d 897, 901 (1991), that we were "very reluctant to allow
  interlocutory review of discovery orders, because such review would result
  in piecemeal appellate review rarely justified by judicial economy." 
  Furthermore, we are wary of granting appellate review on request from a
  nonparty.  Id. at 507-08, 594 A.2d  at 901.  Nor is the matter ripe for
  review under the collateral appeal doctrine of V.R.A.P. 5.1. See id.

       To expedite decision however, this Court has discretion to hear
  appeals not ordinarily granted.  V.R.A.P. 2; In re F.E.F., 156 Vt. at
  508-09, 594 A.2d  at 901.  Thus, in In re F.E.F., we suspended the normal
  requirements for granting extraordinary relief "`because of the importance
  of the issue and because no further facts [were] necessary in order to
  consider the merits.'"  156 Vt. at 508-09, 594 A.2d  at 901 (quoting State
  v. Saari, 152 Vt. 510, 514-15, 568 A.2d 344, 347 (1989)).  Here, similarly, because of the importance of the
  issue and the fact that the merits have been briefed and argued, we will
  consider the matter.  See Castle v. Sherburne Corp., 141 Vt. 157, 165, 446 A.2d 350, 354 (1982).  In doing so, we reemphasize, as we did in Castle,
  "that this decision should not be interpreted as a relaxation of the strict
  requirements that must be satisfied before a trial judge permits an
  interlocutory appeal to this Court."  Id.

       Our review is further hampered by the fact that, as to the three named
  defendants, the appeal is moot because final judgments have been entered in
  all three cases.  Although the order as written purports to control all
  future and pending discovery procedures in similar cases, this expansion
  was beyond the trial court's purview.  We address the matter nevertheless
  because of the possibility that the issue will arise again, and because of
  the practical difficulty of obtaining meaningful pretrial review.

       SRS contends that the order improperly relieves defendants of their
  obligation to make a threshold showing that information in confidential
  records is favorable and material to the defense.  It also argues that
  public policy favors free and open reporting of suspected child abuse,
  which would be jeopardized by releasing SRS materials not directly related
  to the criminal investigation.  The claims are unfounded.  33 V.S.A. §
  4916(d) expressly allows disclosure of SRS written records to the state's
  attorney, who is then subject to the normal disclosure rules of V.R.Cr.P.
  16.  We see no indication that the statute applies only to those records
  pertaining to a specific criminal investigation.  Moreover, no material is
  released directly to the defendant or defense counsel; the state's attorney
  screens the file and releases only that information to which the defendant
  is entitled under state and federal law.  Withheld information is also
  subject to a second level of review by the trial court in camera.  Hence,
  the fear of wholesale disclosure of immaterial confidential information is
  unfounded.

       We hold, in sum, that insofar as the court's ruling applied to the
  criminal cases before it at the time, the court did not abuse its
  discretion in ordering the disclosure procedure.

       That portion of the order purporting to apply its terms to future
  cases is reversed.  In all other respects, the order is affirmed.


                              BY THE COURT:


                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Frederic W. Allen, Chief Justice (Ret.)
                              Specially Assigned