In re D.L.

IN_RE_DL.94-218; 164 Vt 223; 669 A.2d 1172

[Filed 22-Sep-1995]

  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. 94-218


In re D.L.                                   Supreme Court

                                             On Appeal from
                                             District Court of Vermont,
                                             Unit No. 3, Washington Circuit

                                             November Term, 1994


Shireen Avis Fisher, J.

       Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier, for State of Vermont

       David J. Mullett of Cheney, Brock, Saudek & Mullett, P.C., Montpelier,
  for appellee M.R.

       Robert A. Sheftman, Montpelier, for appellee D.H.(1)



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


       DOOLEY, J.   The State of Vermont appeals an order of the Washington
  District Court quashing subpoenas issued in connection with an inquest
  proceeding pursuant to 13 V.S.A. § 5131.  The district court ruled that the
  inquest procedure, as embodied in 13 V.S.A. §§ 5131-5137, violates Chapter
  II, Section 5 of the Vermont Constitution.  We disagree that the separation
  of powers provision is violated and reverse.

       On October 25, 1993, a state special drug prosecutor filed an
  application for an inquest regarding illegal contraband.  The application
  was granted by District Judge Dean Pineles, and the State issued subpoenas
  ordering three witnesses to appear at an inquest scheduled later that week. 
  The witnesses moved to quash the subpoenas on the ground that the statutory
  inquest procedure violates the Vermont Constitution's separation of powers
  provision.  In a lengthy opinion, District Judge Shireen Avis Fisher ruled
  that the inquest procedure violates the

 

  requirement of separation of powers.  Although, as discussed in more
  detail below, part of the court's reasoning was based on practical
  considerations related to the actual functioning of the inquest, the heart
  of the decision is in the following excerpt:

         Rather than functioning in the proper judicial role of a detached
         arbiter rendering a binding decision, the judge at an inquest is
         made a mere assistant in a process designed to render advice to a
         separate branch of government.  The ultimate decision as to
         whether to prosecute remains at all times in the hands of the
         prosecutor, an arm of the executive branch.  The judge conducting
         the inquest is placed in the role of being a delegate of, and
         assistant to, the executive branch of government, furnishing a duly
         intimidating setting, and allowing the judicial office to lend an air
         of solemnity to the process.  He or she exercises no adjudicatory
         role.


  The court granted the motions and discontinued any further proceedings
  in the inquest; this appeal followed.

                                I.

       We begin our discussion by describing Vermont's inquest procedure, its
  history, and the history of inquests in England and other American
  jurisdictions.  The general inquest (FN1) is essentially a criminal
  proceeding, State v. Alexander, 130 Vt. 54, 60, 286 A.2d 262, 265 (1971),
  designed to determine whether sufficient evidence exists to prosecute a
  criminal matter. See 13 V.S.A. §§ 5131-5137; see also State v. Tonzola, 159
  Vt. 491, 497, 621 A.2d 243, 246 (1993).  The state's attorney or attorney
  general initiates an inquest by applying in writing to a judge of the
  district or superior court.  13 V.S.A. § 5131.  If the judge decides to
  conduct an inquest, the judge may issue "necessary process" to require
  witnesses to give evidence related to the investigation.  Id.  This process
  includes issuing subpoenas and exercising the court's contempt power to
  force recalcitrant witnesses to testify.  See State v. Jurras, 97 Vt. 276,
  279, 122 A. 589, 590 (1923).  The statute also provides that all witnesses
  "shall be sworn." (FN1)

 

  V.S.A. § 5132.  The prosecutor conducts the examination of witnesses,
  13 V.S.A. § 5137, but the court may interrupt to assure that witnesses are
  advised of their Fifth Amendment right not to incriminate themselves.  The
  proceeding is conducted in the utmost secrecy, and no individuals other
  than the stenographer, the judge, the state's attorney and the witness may
  be present at the inquest. 13 V.S.A. §§ 5133-34; see Alexander, 130 Vt. at
  60, 286 A.2d  at 266 (participation of sheriff at inquest violated
  statute).(FN2)

       Vermont's inquest procedure has been likened to the proceedings before
  a grand jury, but while a grand jury determines the question of probable
  cause, an inquest is at most a discovery procedure.  Alexander, 130 Vt. at
  61, 286 A.2d  at 266.  It is not designed to be penal or accusatory; its
  sole function is one of investigation.  Id. at 60, 61, 286 A.2d  at 265,
  266. It is this nature of the inquest that is at the heart of the district
  court decision because criminal investigations are traditionally
  characterized as executive functions.

       Vermont has had an inquest procedure in its law from its earliest
  times.  Originally, it was conducted by a justice of the peace for limited
  purposes.  As described in Harman, the authorization and procedure was as
  follows:

           Inquests may be held before any justice of the county, in
           cases of death by supposed casualty or violence, and of fires
           maliciously set.  The procedure is simple, the application being
           usually by word of mouth, and the papers returned being little
           more than the substance of the testimony of the witnesses, with an
           account of the expenses.


  H. Harman, The Vermont Justice and Public Officer § 484 at 408 (1905). 
  Most recently, the

 

  authorization for the justice's inquest, shifted to municipal and then
  district judges on the abolition of the judicial duties of the justice of
  the peace, was contained in 13 V.S.A. §§ 5101-5103, which was repealed in
  1974.

       As Harman indicates, the product of a justice's inquest was a report
  of "the substance of the testimony of each witness in writing" delivered to
  the superior court.  13 V.S.A. § 5103 (repealed).  Originally, the justice
  conducted the proceeding, including the questioning of witnesses.  In 1898,
  however, the Legislature provided that the state's attorney must attend the
  inquest "and conduct the examination."  1898, No. 117, §1.

       The justice's inquest was the Vermont adaptation of the coroner's
  inquest as used in England at the time of the founding of this state and
  widely used in other states.  The english coroner was a judicial officer
  whose primary function was to hold inquests to investigate the causes of
  sudden, violent, or unnatural deaths.  See State v. Knight, 84 N.C. 789,
  792 (1881). The coroner conducted the examination of the witnesses, whose
  attendance could be compelled by the coroner by subpoena, but the decision
  on the cause of death was made by a jury.  See Giles v. Brown, 8 S.C.L. (1
  Mill) 230, 231-32 (1817); see generally 7 American & English Encyclopedia
  of Law 606-07 (2d ed. 1898).  The accused, if any, had no right to present
  witnesses or even be present at the inquest.  See id. at 608.  The decision
  of the jury, called an inquisition, had the status of a grand jury
  indictment and could be the basis of a prosecution. See id. at 610.

       Although the proceedings have become archaic in more recent times,
  many states continued the coroner's inquest.  Probably the most famous
  application in modern times was the coroner's inquest held in connection
  with the death of Mary Jo Kopechne in an automobile driven by Senator
  Edward Kennedy in Chappaquiddick, Massachusetts.  In an appeal over
  procedures to be used at the inquest, the Massachusetts Supreme Judicial
  Court noted: "The pertinent statutory provisions exemplify a public policy
  that the inquest serves as an aid in the achievement of justice by
  obtaining information as to whether a crime has been committed."

  

  Kennedy v. Justice of the Dist. Court of Dukes County, 252 N.E.2d 201,
  205 (Mass. 1969). As in Vermont, other states often abolished the office of
  coroner, transferring the inquest responsibility to justices of the peace
  or criminal court judges.  See State v. Mackles, 108 So. 410, 410-11 (La.
  1926) (justices of the peace); Kennedy, 252 N.E.2d  at 204;  Carrick v.
  Locke, 882 P.2d 173, 178 (Wash. 1994) (judges).

       The current Vermont inquest procedure was introduced in 1910, and has
  changed little since its creation.  1910 No. 221, § 1.  It differs from the
  justice's inquest in two main ways. First, the scope of the proceeding has
  been greatly expanded to "any criminal matter,"  13 V.S.A. § 5131, rather
  than the narrow scope derived from English law.  Second, the role of the
  judge has been reduced to summoning witnesses and presiding over the
  proceeding.  The judge gives no report on what occurred during the inquest.

                                II.

       Like many of the American state constitutions written at the end of
  the eighteenth century, the Vermont Constitution contains a provision that
  divides power among separate branches of government.(FN3)  See Trybulski v.
  Bellows Falls Hydro-Elec. Corp., 112 Vt. 1, 6-7, 20 A.2d 117, 119 (1941). 
  The Vermont Constitution provides that "[t]he Legislative, Executive, and
  Judiciary departments, shall be separate and distinct, so that neither
  exercise the powers properly belonging to the others."  Vt. Const. ch. II,
  § 5.  The logic of this provision is deceptively simple.  To apply it, we
  must determine the powers of each of the branches and ensure no one
  exercises powers belonging to another.  Briefly stated, the legislative
  power is the

 

  power that formulates and enacts the laws; the executive power
  enforces them; and the judicial power interprets and applies them.  See
  State v. Washington, 266 N.W.2d 597, 606 n.13 (Wis. 1978).

       The provision states a fundamental principle of our governmental
  structure.  The division of power serves to create a structure resistant to
  forces of tyranny.  See United States v. Smith, 686 F. Supp. 847, 853 (D.
  Colo. 1988).  Indeed, James Madison states in the Federalist Papers that
  the accumulation of legislative, executive, and judicial power into one
  place is "the very definition of tyranny."  J. Madison, The Federalist No.
  47, at 302 (C. Rossiter ed. 1961).

       Our decisions reflect, however, that more difficult issues and choices
  lie under the surface of separation of powers questions.  Thus, we have
  emphasized that separation of powers doctrine does not contemplate an
  absolute division of authority among the three branches such that each
  branch is hermetically sealed from the others.  See State v. Pierce,
  ___Vt.___, 657 A.2d 192, 194 (1995); see also I.N.S. v. Chadha, 462 U.S. 919, 951 (1983) (federal branches not hermetically sealed from one
  another).  Practical realities of daily government require that there must
  be a certain amount of overlapping or blending of the powers exercised by
  the different departments.  Trybulski, 112 Vt. at 6, 20 A.2d  at 120. 
  Moreover, there are many powers and functions of government that defy
  simple or obvious classification.  Id. at 7, 20 A.2d  at 120.  The focus of
  a separation of powers inquiry is not whether one branch of government is
  exercising certain powers that may in some way pertain to another branch,
  but whether the power exercised so encroaches upon another branch's power
  as to usurp from that branch its constitutionally defined function.  See
  Smith, 686 F. Supp.  at 854.  As stated by James Madison, "where the whole
  power of one department is exercised by the same hands which possess the
  whole power of another department, the fundamental principles of a free
  Constitution are subverted."  James Madison, The Federalist No. 47, at
  303-04 (C. Rossiter ed. 1961) (emphasis in original).

       To determine whether the judiciary's power has been either
  unconstitutionally usurped

 

  or expanded, this Court has traditionally considered four factors: 
  (1) whether the actions at issue are judicial functions or are reasonably
  necessary or incidental to the discharge of a judicial function, Trybulski,
  112 Vt. at 8, 20 A.2d at 120-21; (2) whether the court's role in another
  department's affairs is merely advisory, In re Williams, 154 Vt. 318, 324,
  577 A.2d 686, 689 (1990); In re: Constitutionality of House Bill 88, 115
  Vt. at 528, 64 A.2d  at 177, (3) whether the judiciary has any discretion in
  accepting or rejecting the delegated actions, Granai v. Witters, 123 Vt.
  468, 470-71, 194 A.2d 391, 392-93 (1963); and (4) whether the actions
  impair the independent institutional integrity of the judiciary, Pierce,
  ___Vt.___, 657 A.2d  at 195.  We consider each of these factors in turn.

                              III.

                               A.

       When actions of the judiciary overlap with the inherent powers of
  another branch, the first inquiry is whether the actions at issue are
  incidental to the discharge of a judicial function. Chioffi v. Winooski
  Zoning Bd., 151 Vt. 9, 11, 556 A.2d 103, 105 (1989).  The mere fact that
  the judiciary is engaged in an action normally characterized as legislative
  or executive is not important as long as the action is related to a
  judicial function.  Trybulski, 112 Vt. at 8, 20 A.2d  at 120.
  
       The application of this factor can be difficult.  For example, in
  Chioffi v. Winooski Zoning Board, we held that the superior court's
  participation in the formulation of municipal zoning policy, which is
  normally a legislative function, was not unconstitutional.  151 Vt. at 13,
  556 A.2d  at 106.  The court's de novo review of zoning board decisions was
  permissible because the zoning board acted in a "quasi-judicial" manner by
  granting permits, allowing zoning variances, and deciding the applicability
  of zoning ordinances in particular cases.  Id. Separation of powers
  principles were not violated because the court's actions were incidental to
  the traditional judicial function of finding facts and applying the law to
  those facts  Id.

       Conversely, in In re Williams, we held unconstitutional a statute that
  required the district

 

  court to hold a full hearing on whether grounds exist to dismiss or
  suspend a municipal employee.  154 Vt. at 325, 577 A.2d  at 689.  The
  characterization of the actions performed by the district court was
  essentially judicial; the court conducted a full evidentiary hearing on the
  matter, determined facts, and certified its findings.  Id. at 320, 577 A.2d 
  at 687.  These actions, however, were unconstitutional because the power
  exercised did not relate back to a judicial function.  The court's action
  was advisory to the governing board of the municipality, which still had to
  decide whether to dismiss or suspend the employee and could ignore the
  court findings in that decision.  Id. at 324, 577 A.2d  at 689.

       The inquest witnesses characterize the situation here as inappropriate
  judicial participation in the executive function of investigating crime and
  deciding whether to prosecute.  We have detailed the history of inquests
  here and in other states to show that the neat compartmentalization
  proposed is inconsistent with the historical understanding of judicial
  power. Although investigatory, inquests have been viewed as the exercise of
  judicial power.  Thus, the Supreme Court of Washington, in rejecting a
  challenge to that state's inquest procedure emphasized:

        Judges have been assuming the role and duties of coroners [to
        conduct inquests] for as long as Washington has been part of the
        United States.  Such a long and heretofore unchallenged
        association between the executive and judicial branches is prima
        facie evidence of the constitutionality of the statute.

  Carrick, 882 P.2d  at 178.  Similarly, the Supreme Judicial Court of
  Massachusetts noted the historical acceptance of inquests:

        It has never been doubted that the duties of obtaining discovery
        and of holding inquests may properly be performed by judges.  It
        has been said, in substance, that holding an inquest is a quasi-
        judicial function which may be committed to administrative
        officers or may with propriety be placed upon the judiciary.


  Lachapelle v. United Shoe Mach. Corp., 61 N.E.2d 8, 10 (Mass. 1945);
  see also  State v. Unnamed Defendant, 441 N.W.2d 696, 700-01 (Wis. 1989)
  ("John Doe" proceeding, which is similar to an inquest, was in existence
  before adoption of state constitution, demonstrating "long-

  

  standing acquiescence in the constitutionality of this statute").  The
  Supreme Court of New Jersey has adopted the even broader view that the
  "power of investigation cannot be assigned to any one of the branches
  exclusively."  Massett Bldg. Co. v. Bennett, 71 A.2d 327, 330 (N.J. 1950). 
  The court upheld a statute authorizing a judge, at the request of
  taxpayers, to conduct a summary investigation into the affairs of a
  municipality because "an investigation into the public affairs of a
  municipality or a county is . . . judicial in nature when it may lead to a
  civil suit for damages, or a proceeding in lieu of a prerogative writ, or a
  grand jury indictment or any one of a variety of statutory actions." 
  Id.(FN4)

       Although the role of the judiciary in criminal investigation has grown
  smaller over time, some involvement continues.  For example, judges issue
  search warrants to assist the police in conducting their investigation of
  crime.  See State v. Savva, 159 Vt. 75, 86, 616 A.2d 774, 780 (1991).  In
  addition, the investigative function of the grand jury has historically
  been considered to be part of the judicial process.  See Salvaggio v.
  Cotter, 324 F. Supp. 681, 684-85 (D. Conn. 1971).  Grand jury
  investigations in Vermont have often been the source of prosecution.
  Alexander, 130 Vt. at 61, 286 A.2d  at 266.  Indeed, grand juries have been
  described as institutions that have "one foot in the judicial branch and
  the other in the executive."  In re Request for Access to Grand Jury
  Materials, Grand Jury No. 81-1, Miami, 833 F.2d 1438, 1444 (11th Cir.
  1987).

       There are two other considerations in assessing this factor.  In the
  modern inquest, the court's role is limited to exercising its subpoena
  power, administering oaths, protecting the rights of witnesses, and using
  contempt powers.  These powers assure that witnesses appear to testify,

  

  and encourages them to testify truthfully.  The court does not
  initiate the inquest investigation. It does not formulate or present
  questions to the witnesses.  The court makes no decision regarding whether
  evidence of a crime is sufficient to prosecute.  The courts' role directly
  relates back to its ultimate function of neutral arbiter.  See House Bill
  88, 115 Vt. at 529, 64 A.2d  at 172.  It assures that inquests are conducted
  in a way that permits the State to investigate a matter without
  transgressing on witnesses' liberties.  See Washington, 266 N.W.2d  at 611. 
  Ironically, the traditional inquest procedure, as in use in England at the
  time of our Constitution, raises greater separation of powers concerns than
  the current procedure.  In that procedure, the coroner exercised powers
  that are now reserved to the prosecutor.(FN5)  Indeed, the Massachusetts
  Court has held that a violation of separation of powers would occur if the
  Attorney General was bound by the findings of an inquest.  See Shepard v.
  Attorney General, 567 N.E.2d 187, 191 n.7 (Mass. 1991); see also State v.
  Parker, 151 Vt. 378, 379, 560 A.2d 383, 385 (1989) (executive branch "is
  the exclusive charging authority").(FN6)

       Similarly, the lack of an inquest report by the presiding magistrate
  reduces the concern that the judge could not fairly preside over a
  resulting criminal trial.  The statutes specifically allow for the inquest
  judge to preside at trial.  See 13 V.S.A. § 5132.  We have upheld the
  statute against a claim that participation by the inquest judge denies a
  fair trial, noting "[t]he

 

  functions of the judge who may be called upon to conduct an inquest
  are such that there is even less ground to suspect prejudice than in case
  of a judge who has presided at a former trial, or who has participated in
  the trial of a different cause where the same questions are presented for
  consideration."  Jurras, 97 Vt. at 281, 122 A.  at 591.

       The second consideration distinguishes Williams.  The judiciary's role
  in that case related to disciplining or removal of government employees, a
  traditional executive branch prerogative. The judiciary's role in the
  inquest is related to criminal proceedings.  Thus, we agree with the
  Massachusetts Court that the statute "authorizes the courts to perform a
  function so closely connected with and so far incidental to strictly
  judicial proceedings that the courts in obeying the statute would not be
  exercising executive or nonjudicial powers."  Lachapelle, 61 N.E.2d  at 10.

                                B.

       A second factor we have relied upon in a separation of powers inquiry
  is whether the courts' participation in another branch's affairs is merely
  advisory. See Kennedy v. Chittenden, 142 Vt. 397, 399, 457 A.2d 626, 627
  (1983); House Bill 88, 115 Vt. at 528, 64 A.2d   at 172. In Williams, where
  the court's role was to determine the legality of potential employee
  discipline action before the municipality decided to impose that action, we
  stressed that the court's action "is merely advisory, and the legislative
  body of the municipality may choose to take no action even if the court has
  found misconduct."  154 Vt. at 324, 577 A.2d  at 680.

       Again, the traditional inquest procedure is more suspect under this
  factor than the current procedure.  In the traditional procedure, the
  justice of the peace delivered a report that was only advisory to the
  charging authority.  In the current inquest procedure, the court's role is
  narrowed but no action or decision of the judiciary is subject to the
  review or rejection of the executive branch.  To the extent the court
  exercises judicial power, its decisions are final, at least until
  overturned within the judiciary.

       We recognize in assessing this factor that the whole inquest
  proceeding is advisory to

 

  enable the prosecutor to make an informed charging decision.  This is
  nothing more than saying that the function of the inquest is investigatory,
  and a discretionary decision must be made before the fruits of the
  investigation are turned into a criminal proceeding.  We reiterate that
  involvement in investigation is a more appropriate role for the judiciary
  than involvement in bringing the criminal charges.  See Parker, 151 Vt. at
  379, 560 A.2d  at 385.

                                C.

       Another factor that is important in a separation of powers inquiry is
  whether the judiciary has any discretion in accepting or rejecting the
  delegated actions.  See Granai, 123 Vt. at 470-71, 194 A.2d  at 392-93. 
  When the courts serve at the order of another branch, their independence
  and autonomy is compromised.  See id.  In Granai, we held unconstitutional
  a statute allowing state legislators who were involved in civil litigation
  to continue hearings or trials scheduled during the legislative session,
  because it permitted the legislature to dictate to the judiciary the terms
  of its internal administration.  Id. at 471, 194 A.2d  at 393.

       Other courts considering separation-of-powers challenges to inquests
  and similar procedures have stressed this factor.  For example in Massett
  Bldg. Co. v. Bennett, the New Jersey Court stressed that the municipal
  investigation statute did not create a mandatory duty so that the judge
  "may act in his discretion."  71 A.2d  at 330 (internal quotes omitted). 
  Similarly in Carrick v. Locke, the Washington Supreme Court relied heavily
  on the fact that judges could refuse to perform an inquest.  See 882 P.2d 
  at 179.

       We construe the inquest statute as providing that the courts'
  supervision of the inquest is discretionary.  See 13 V.S.A. § 5131 (upon
  application of state's attorney, "a judge . . . may institute and conduct
  an inquest") (emphasis added); 13 V.S.A. § 5132 ("such judge may issue
  necessary process to bring witnesses before him") (emphasis added).  The
  plain, ordinary meaning of the word "may" indicates that the statue is
  permissive and not mandatory.  See Medlar v. Aetna Ins. Co., 127 Vt. 337,
  342, 248 A.2d 740, 744 (1968).  Thus, the district and

 

  superior courts are under no obligation to conduct an inquest when
  requested.  Because the courts are free to reject inquest applications,
  this third factor also weighs in favor of constitutionality.

                               D.

       The last factor we consider is whether the independent institutional
  integrity of the judiciary is impaired by the responsibility for conducting
  inquests.  See Pierce, ___Vt. at ___, 657 A.2d  at 195.  This factor is most
  important where judicial power is encroached upon by another branch.  For
  example, in Pierce, we used this standard to consider the validity of a
  statute that allowed deferred sentencing by the court only with the
  approval of the prosecutor. The factor can be significant, however, where
  additional judicial responsibilities might restrict the court's ability to
  perform its core functions.  Thus, in Williams we expressed concern that
  the requirement that the court hear the personnel dispute within ten days
  of filing could "have serious adverse consequences for the many other
  litigants in the court, as well as to important public interests."  154 Vt.
  at 324-25, 577 A.2d  at 689.

       Although the district courts are facing new stresses from caseload
  growth, we cannot conclude that the inquest responsibility "impermissibly
  interfere[s] with the judiciary's core functions."  Pierce, ___Vt. at ___,
  657 A.2d  at 196.  This follows in part from our determination that the
  court can refuse to hold an inquest.  The statutes contain no deadlines for
  court action, and the court has no responsibility for post-inquest findings
  of fact or conclusions of law.  We can take judicial notice that inquests
  are sought only infrequently.

       In summary, our analysis of the factors that determine whether the
  requirement of separation of powers has been violated shows that there is
  no violation.  Our conclusion is reinforced by the fact that decisions from
  other states uniformly support our result.  See Lachapelle, 61 N.E.2d  at 10
  (inquest-like procedure for judicial investigation of alleged monopoly does
  not violate separation of powers requirement); Bennett, 71 A.2d  at 330
  (procedure for judicial investigation of affairs of municipality on request
  of taxpayers does not

  

  violate separation of powers requirement); Unnamed Defendant, 441 N.W.2d  at 701 ("John Doe" proceeding, which is similar to inquest, does not
  offend separation of powers requirements); Carrick, 882 P.2d  at 179
  (inquest procedure does not violate separation of powers doctrine).

       There remains to be considered only the trial court's decision that
  the reality of how inquests are conducted causes the separation of powers
  defect.  The following is its description of this reality:

        Upon request of a State's Attorney, a judge signs and issues
        a subpoena for a person to appear at an inquest.  This witness may
        or may not be a person who is suspected of any wrongdoing.  The
        subpoena is then served upon that person by a law enforcement
        officer, typically one in uniform and carrying a sidearm.

        At the date and time specified in the subpoena, the witness
        appears at the courthouse.  He or she is then escorted into a
        courtroom by an armed, and sometimes uniformed, court officer.
        Any person accompanying the witness is ordered to wait in the hall
        outside of the courtroom.  Should the witness be accompanied by
        counsel, the attorney is also required to remain in the hallway
        outside of the courtroom.  No member of the media is allowed in
        the courtroom, nor is the media allowed access at any point to a
        transcript of the proceedings.

        The courtroom is then cleared by the court officer of all
        persons except the prosecutor, the judge, the stenographer, and the
        witness.  The court officer locks the courtroom doors behind
        himself or herself as he or she leaves.  The judge then issues to
        the stenographer the stenographer's oath of secrecy, a violation of
        which subjects the stenographer to criminal liability.

        The judge then turns to the witness and informs the witness
        of the nature of the proceeding.  The judge tells the witness that
        the entire inquest is secret.  The witness is told that they will be
        subject to prosecution for perjury if they are less than truthful
        during the inquest.  If the State has offered immunity to the
        witness, the judge informs the witness that he or she may not
        refuse to answer any questions, on penalty of a finding of
        contempt and possible incarceration.  If the State has not offered
        immunity to the witness, the judge informs the witness of the
        constitutional privilege against self-incrimination, and attempts to
        explain its significance to the (usually very nervous) witness.

        The prosecutor then begins questioning the witness.  The
        burden falls solely on the judge, sua sponte, to see that the

 

        prosecutor does not, in A [sic] fit of excessive zeal, trample on the
        witness's fifth amendment rights.  The judge must, in effect, on
        his or her own initiative, be on guard for the rights of the witness.
        Since the judge has no idea what the witness may say, these efforts
        are often ineffectual.  If the State has given a witness immunity
        and the witness hesitates or refuses to respond to the prosecutor's
        questions, the judge is required to advise the witness again of the
        consequences of such non-cooperation, and to hold the witness in
        contempt if the reluctance continues.  Thus, in some
        circumstances, the witness sees the judge as a counselor and
        advisor, informing the witness of his or her rights, a role which
        the judge cannot ethically or practically carry out.  A judge is not
        supposed to become involved in the giving of legal advice. . . .
        In other circumstances, the witness sees the judge as an
        intimidating tool of the prosecution.  In either situation, it is
        impossible for the judge to maintain his or her proper role as a
        neutral arbiter between two parties, each of which is zealously
        arguing their position.  Such detached neutrality is fundamental to
        the integrity of the judicial office.

  In a later part of the opinion, the court detailed how the inquest
  procedure necessarily causes violations of the ethical responsibilities of
  the judge.  The court concluded that the inquest should be replaced by
  "more modern and more effective discovery mechanisms."

       We do not view the reality of the inquest procedure as changing our
  conclusion that it does not offend separation of powers requirements.  We
  reiterate that the decision to hold an inquest is discretionary with the
  trial court.  The practical and ethical considerations itemized above may
  in any given case induce a refusal to honor the request for an inquest.

       Reversed and remanded.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice


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                                  Footnotes

FN1.  We use the term general inquest to distinguish the inquest into
  criminal matters used here from the more narrow inquest into the cause and
  manner of death formerly authorized by 13 V.S.A. §§ 5101-5103, now
  repealed.

FN2.  Archer Mayor, author of the popular "Joe Gunther" detective
  mysteries, has summed up the inquest procedure in his 1990 novel, Border
  Lines.  Observed Mayor: "[The inquest] is a secret criminal proceeding in
  which almost anybody and his uncle can be sebpoenaed [sic] to appear before
  a judge to answer questions from the State's Attorney.  The person so
  summoned cannot bring his or her lawyer into the courtroom, although they
  can leave the room and consult with their lawyer outside if and when they
  like, but if they do not answer or cooperate with the process, the judge
  can order them jailed for contempt.  In the short run, inquests give
  frustrated cops a moment of joy. . . ."  A. Mayor, Border Lines, 253-54
  (1990).

FN3.  Although the United States Constitution does not contain an
  explicit separation of powers provision, the United States Supreme Court
  has derived a separation of powers requirement from the statements of the
  powers of each of the branches.  See, e.g., Bowshar v. Synar, 478 U.S. 714,
  721-22 (1986).  We have often relied upon federal separation of powers
  jurisprudence in developing our own.  See Trybulski v. Bellows Falls
  Hydro-Elec. Corp., 112 Vt. 1, 7, 20 A.2d 117, 120 (1941); see also In re:
  Constitutionality of House Bill 88, 115 Vt. 524, 529, 64 A.2d 169, 171-72
  (1949) (noting that judicial power of both Vermont and Federal Supreme
  Courts is same).  Thus, this opinion will draw on federal case law for
  analysis and support.

FN4.  Bennett also has an alternative rationale that nonjudicial
  investigatory functions can be undertaken by the judiciary, as legislative
  agents, as long as they do not "interfere with the functioning of the
  courts either in the amount of time or attention they detract from judicial
  activity or in involving the courts in situations that may reflect on their
  reputation in the community for fairness, impartiality and independence," 
  71 A.2d  at 331.  We do not adopt this alternative rationale.

FN5.  Although the Vermont justice of the peace did not generally have
  all of the powers of the English coroner, expansive powers existed in some
  instances.  Thus, a justice could arrest and detain until trial a person
  who disturbed a religious meeting and was a rioter, and could seize
  counterfeit bills and notes and the implements used to create them.  See
  M.L. Bennett, The Vermont Justice Being a Treatise on Civil and Criminal
  Jurisdiction of Justices of the Peace 649 (1864).

FN6.  Although in modern times, certain public officials, particularly
  the state's attorney elected in each county, have been the exclusive
  charging authorities, we have in the past recognized the right of private
  persons to start criminal prosecutions.  Private prosecution was rare,
  however, because it was "clogged with such conditions."  H. Harman, The
  Vermont Justice and Public Officer § 585 at 476 (1905).