State v. Fernald

State v. Fernald  (98-028); 168 Vt. 620; 723 A.2d 1145

[Filed 23-Oct-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-028

                            SEPTEMBER TERM, 1998


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 2, Rutland Circuit
Michael J. Fernald              }
                                }     DOCKET NO. 1078-8-97Rdcr


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

       Shelley Palmer appeals from the Rutland District Court's  denial of
  his request for a bail warrant and discharge as surety for Michael Fernald,
  pursuant to 13 V.S.A. § 7562, upon Palmer's surrender  of Fernald to the
  court.  We conclude that the case is moot and dismiss the appeal.

       The parties do not dispute the relevant facts.  On November 1, 1997,
  Shelley Palmer, a professional bail bondsman, entered into an Appearance
  Bond agreement ("agreement") with the district court and Michael Fernald,
  against whom were pending several criminal charges. According to the
  agreement, Fernald was required to reside at the apartment of John DeFeo,
  an indemnitor to Fernald's bail.  Fernald was  also prohibited from moving
  out of DeFeo's residence without first  providing written notice to Palmer.

       Approximately three weeks later, Palmer was informed by DeFeo and Geri
  Ackly, the other indemnitor to Fernald's bail, that  Fernald had moved from
  DeFeo's residence and his whereabouts were  unknown.  Palmer did not
  receive written notice of Palmer's intent to  move prior to his relocation. 
  On December 1, 1997, after unsuccessful attempts to locate Fernald, Palmer
  filed a Request for Arrest of Principal in Relief of Bail in the district
  court pursuant to 13 V.S.A. § 7562.  The court did not issue the requested
  bail warrant or discharge Palmer as Fernald's surety, but scheduled the
  matter for a  hearing on December 18, 1997.  When Palmer appeared at court
  on December 18, he learned that the hearing had been rescheduled for
  January, 15, 1998.  Later that day, Palmer located, arrested and
  surrendered Fernald to the court.

       Upon Palmer's surrender of Fernald, the court held a hearing  and
  declined to issue a bail warrant and relieve Palmer of his responsibilities
  as surety.  The court ordered Fernald to continue to reside at his new
  address and rescheduled the hearing on Palmer's §  7562 request for
  February 10, 1998.  On December 23, 1998, Palmer filed a notice of appeal
  from that order. The February 10 hearing was postponed until February 20,
  1998, when it was finally held and Palmer's requests were granted.  This
  appeal followed.


       On appeal, Palmer and the State (FN1) concede that the relief originally
  sought by Palmer from the district court has been granted. Both argue,
  however, that the situation in which a trial court declines to timely issue
  a bail warrant or accept a surety's surrender of his  principal is

 

  capable of repetition, yet evasive of review.  Thus, they claim that this
  case is an exception to the mootness doctrine which warrants review by this
  Court.

       In general, a case becomes moot "when the issues presented  are no
  longer `live[]'" or the parties lack a legally cognizable  interest in the
  outcome.  State v. Gundlah, 160 Vt. 193, 196, 624 A.2d 368, 370 (1993)
  (citing Doria v. Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 319 (1991)).
  The mootness doctrine requires that an actual controversy exist at all
  stages of review.  Id.  Generally, this Court does not review moot cases,
  though we recognize an exception "in cases  that are capable of repetition,
  but evade review."  Id.  When the case  is not a class action, this
  exception is confined to situations where: (1) the duration of the
  challenged action was so brief that it could not be fully litigated before
  it expired, and (2) there is a reasonable expectation or a demonstrated
  probability that the complaining party will be subject to the same action
  again.  Id. (citing In re S.H., 141 Vt. 278, 281, 448 A.2d 148, 149
  (1982)).

       We are not persuaded that there is a "reasonable  expectation" -- much
  less a "demonstrated probability" -- that the fact  pattern presented in
  this case will be repeated.  See In re P.S., 8 Vt. L.W. 219, 220 (1997)
  (exception to mootness doctrine does not apply when repetition of fact
  pattern is unlikely).  The validity of the State's assertion that the
  timely issuance of bail warrants pursuant to  13 V.S.A. § 7562 "will have
  the salutary effect of obviating the need  for persons standing bail to
  rely upon self help in order to return the principal to the court" is
  self-evident.  Nonetheless, it is  insufficient to create a legally
  cognizable interest in the outcome of a case such that review is warranted. 
  In re S.H., 141 Vt. at 280, 448 A.2d  at 149.

       Appeal dismissed.

                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice


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                                  Footnotes

FN1.  The Attorney General filed a brief in this case at the direction
      of the Court.