In re Kennedy

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-447

                            FEBRUARY TERM, 1991


In re Stephen Kennedy             }          APPEALED FROM:
                                  }
                                  }
                                  }          District Court of Vermont,
                                  }          Unit No. 1, Windham District
                                  }
                                  }
                                  }          DOCKET NO.


             In the above entitled cause the Clerk will enter:

      The district court granted appellee's motion to dismiss on the ground
that its involvement in the statutory scheme for discipline of state police
officers under 20 V.S.A. { 1880 was unconstitutional under In re Williams,
___ Vt. ___, 577 A.2d 686 (1990), which held unconstitutional the district
court's role in the statutory scheme for discipline of municipal police
officers under 24 V.S.A. { 1932.  We find unpersuasive appellant's attempts
to distinguish the instant statute from the one found unconstitutional in
Williams and, accordingly, we affirm.

     The district court's role under { 1932 violated the separation of
powers provision of the Vermont Constitution, Chapter II, Section 5, because
it imposed nonjudicial responsibilities on the judiciary.  "The statute
ma[de] our district courts hearing officers for municipalities." Williams,
___ Vt. at ___, 577 A.2d  at 687.  While the district court's findings of
fact were final, { 1932(c), they had "none of the authority of a judgment."
Williams, ___ Vt. at ___, 577 A.2d  at 689.  The municipality held the
ultimate power of discipline, and the district court's findings were no more
than "an advanced ruling on what may or may not become a personnel dispute
between the police officer and the legislative body of the municipality."
Id.

     The district court is placed in the role of a hearing officer for a
potential personnel dispute between the department of public safety and a
state police officer under { 1880.  The differences pointed to by appellant
between { 1880 and { 1932 are differences of form, not substance.  Appellant
attempts to distinguish them on the ground that under { 1932(d) the district
court's findings do not compel a disciplinary sanction, whereas under {
1880(e), if the district court finds the charges are proved, "the commis-
sioner shall take such disciplinary action as may be appropriate."  This
difference does not alter the conclusion that the district court's findings
do not have the authority of a judgment.  The commissioner is free to reject
any disciplinary action recommended by the district court, { 1880(d), and {
1880(e) is broad enough to allow no action if the commissioner so directed.
See Department of Public Safety Rules and Regulations, { III, Art. IV, Rule
5.1 (rev. Nov. 1, 1986) ("In a case . . . in which the court or hearing
panel concludes that the charges have been proved, the Commissioner shall
determine what, if any, disciplinary action to take against the member.")
(emphasis added).  Further, the action taken by the commissioner is appeal-
able to the state labor relations board.  { 1880(f).

     Nor does it make a difference that it is the charged officer, not the
commissioner, who invokes the jurisdiction of the district court.  It is
what the district court is charged with doing under { 1880 that violates
separation of powers principles, not who calls upon it to do so.  Further,
the fact that under { 1932 the district court may become involved only after
the municipal legislative process has begun, whereas under { 1880 the dis-
trict court becomes involved, if at all, before the hearing process is even
commenced, is inconsequential.  As stated above, it is what the district
court is charged with doing under { 1880 that we must scrutinize.  This is
the same under both statutes, regardless of whether it interrupts or pre-
cedes the alternative hearing process.  In addition, as the district court
pointed out below, the municipal legislative process under { 1932 has in
reality progressed no further than the executive process under { 1880 at
the time the district court is to hold a hearing if its jurisdiction is
invoked.

     Affirmed.










                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

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


                                   Denise R. Johnson, Associate Justice