D.L., In re, 94-218

• Decision Date: 22 September 1995
• Docket Number: No. 94-218,94-218
• Citation: 669 A.2d 1172,164 Vt. 223
• Court: Vermont Supreme Court
• Parties: In re D.L.

Page 1172

669 A.2d 1172

164 Vt. 223

In re D.L.

No. 94-218.

Supreme Court of Vermont.

Sept. 22, 1995.

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

David J. Mullett of Cheney, Brock, Saudek & Mullett, P.C., Montpelier, for appellee M.R Robert A. Sheftman, Montpelier, for appellee D.H. (1).

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

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 ¹ 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." 13 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. §§ 5133-5134; see Alexander, 130 Vt. at 60, 286 A.2d at 266 (participation of sheriff at inquest violated statute). ²

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 were 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 Const.) 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, 356 Mass. 367, 252 N.E.2d 201, 205 (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, 161 La. 187, 108 So. 410, 410-11 (1926) (justices of the peace); Kennedy, 252 N.E.2d at 204; Carrick v. Locke, 125 Wash.2d 129, 882 P.2d 173, 178 (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. ³ 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, 83 Wis.2d 808, 266 N.W.2d 597, 606 n. 13 (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...