F.E.F., In re

• Decision Date: 17 May 1991
• Docket Number: Nos. 89-228,89-296,s. 89-228
• Citation: 594 A.2d 897,156 Vt. 503
• Parties: In re F.E.F., Juvenile. and STATE of Vermont v. Edwin G. CAMERON.
• Court: Vermont Supreme Court

Page 897

594 A.2d 897

156 Vt. 503

In re F.E.F., Juvenile and STATE of Vermont v. Edwin G. CAMERON.

Nos. 89-228, 89-296.

Supreme Court of Vermont.

May 17, 1991.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Alexandra N. Thayer, Asst. Atty. Gen., Waterbury, for plaintiff-appellant Department of Social and Rehabilitation Services.

William Wright, Bennington County State's Atty., Bennington, for plaintiff-appellant State.

Witten, Saltonstall & Woolmington, Bennington, for defendant-appellee F.E.F.

William M. McCarty and Bruce Hesselbach of McCarty Law Offices, Brattleboro, for defendant-appellee Cameron.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and SPRINGER, District Judge (Ret.), Specially Assigned.

DOOLEY, Justice.

This is a consolidated appeal from district court orders in a criminal case and an unrelated juvenile delinquency case. Both orders require the Vermont Department of Social and Rehabilitation Services (SRS) to disclose records relating to child abuse investigations conducted in connection with the cases. In both cases, SRS has appealed the disclosure order. In the juvenile delinquency proceeding, SRS's failure to disclose the records led to dismissal of the case, and the State has appealed the dismissal through the state's attorney. We affirm the disclosure order in both cases, but reverse the dismissal of the juvenile proceedings.

In State v. Cameron, defendant is charged with sexual assault on a minor, his daughter, in violation of 13 V.S.A. § 3252(a)(3). The probable cause affidavit of a Bennington police officer indicates that defendant's wife and daughter originally made the complaint to an SRS worker who called the police officer. The alleged victim's statement was taken at the SRS office. The State disclosed the SRS worker as a trial witness, but did not turn over any of her records in discovery. Defendant sought her records from the state's attorney and eventually filed a motion for disclosure of all SRS records concerning the alleged sexual abuse.

Defendant made a number of claims in support of his asserted need for the records. He noted that the officer's statement indicated that he had interviewed the victim jointly with the SRS worker. He also stated that in cases of alleged child abuse by a parent, the protocol in effect in southern Vermont required an interview with the other parent, here the mother, and that he needed to see that interview because the mother had requested charges be dropped, apparently in return for a divorce property settlement. Defendant also claimed that the protocol required a medical examination of the alleged victim, but the State, in response to discovery requests, stated without explanation that no medical examination had been conducted. Finally, defendant alleged that there were inconsistencies in the victim's statements that were made available to him and that there was at least one more interview done by an SRS worker that was not made available to him.

Based on defendant's motion and a hearing, the court required SRS to turn over the records to the court pursuant to V.R.Cr.P. 16.2(f) so that the court could make an in camera inspection. SRS was given permission to appeal this order pursuant to V.R.A.P. 5.1 but was not granted a stay. The records were turned over to the court, and many were disclosed to defendant pending this appeal.

The history of the juvenile delinquency proceeding is similar. Defendant is charged with a sexual assault on a nine-year-old boy in violation of 13 V.S.A. § 3252(a)(3). A state police officer's affidavit accompanying the petition indicates that a joint interview of the alleged victim was conducted with an SRS worker who acted as the "lead interviewer." At a preliminary hearing in March 1989, the court ordered the State to provide discovery of all "Rule 16 matters including SRS investigative files ... as to this matter." When the deputy state's attorney attempted to obtain the records from SRS, the department refused to provide them and communicated that refusal to the court along with an affidavit of the district director explaining its file-access policy and its relationship to the state's attorney's office. This led to a motion to compel and the issuance by defendant's counsel of a subpoena duces tecum to require the district director to bring the records to a hearing. At the hearing, the SRS director indicated that he had provided the state's attorney's office with two anatomically-correct drawings on which the alleged victim, during his interview with the officer and the SRS worker, marked the area where he had been sexually abused.

Following the hearing, the court reiterated its decision that the SRS file was discoverable under V.R.Cr.P. 16, but ordered that it be turned over to the court for an in camera inspection. SRS then filed a notice of appeal, and defendant responded with a motion to strike the notice because the discovery order was not a final judgment. The court struck the notice of appeal on April 25, 1989. When the State failed to comply with the discovery order on April 27th, the date of the merits hearing, the court dismissed the case concluding that the State had "flagrantly" violated the court's order to produce the SRS file. Both SRS and the State appealed from this order.

There are two main issues on the merits of these consolidated appeals: (1) whether the SRS files are discoverable under the applicable provisions of the Vermont Rules of Criminal procedure; ^{1 1} and (2) whether all or part of the SRS files are discoverable as a matter of due process of law under the standards announced in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). If we find the files discoverable under either theory, we must consider in the juvenile delinquency case whether dismissal was the proper sanction.

I.

Before we address the merits issues, however, we must consider appellees' position that the SRS appeals are not properly before us. In F.E.F., both SRS and the state's attorney appealed from the dismissal order. The State's appeal from the final judgment properly brought the case before us. See 4 V.S.A. § 2(a) (Supreme Court has jurisdiction over appeals from district court); 13 V.S.A. § 7403(b) (in felony criminal cases, State can appeal from dismissal of indictment or information). For this reason, we need not address whether the SRS appeal is proper.

In Cameron, the only appeal before us is one taken by SRS as a collateral order appeal. See V.R.A.P. 5.1. The collateral order doctrine creates a limited, discretionary exception to the normal final judgment rule. It "offers appellate redress in the small number of extraordinary cases where the normal appellate route will almost surely work injustice, irrespective of this Court's final decision." In re Maple Tree Place Associates, 151 Vt. 331, 333, 560 A.2d 382, 383 (1989). The order to be appealed must " 'conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.' " State v. Lafayette, 148 Vt. 288, 291, 532 A.2d 560, 561 (1987) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)).

We have been very reluctant to allow interlocutory review of discovery orders, because such review would result in piecemeal appellate review rarely justified by judicial economy. See Ley v. Dall, 150 Vt. 383, 384-85, 553 A.2d 562, 563 (1988). We are also reluctant to find appellate jurisdiction at the request of a nonparty. We recognize that our reluctance must give way in an appropriate case in response to a claim of privilege. However, we must insist in such cases that the trial court has made a conclusive determination of the privilege issue.

In this case, there was no conclusive determination. The State complied with the discovery order without resistance. ² We agree with the seventh circuit court of appeals that "a party's sincerity [is tested by] having to risk a [sanction] as a condition to appeal." Ryan v. Commissioner of Internal Revenue, 517 F.2d 13, 20 (7th Cir.1975). In the comparable situation where a nonparty seeks a collateral order appeal of the court's refusal to quash a subpoena against it, the federal courts have insisted that the matter ripen into a contempt proceeding so that there is nothing left for court action but the execution, and the nonparty has formally been brought into the proceeding. See, e.g., In re Grand Jury Subpoena for New York State Income Tax Records, 607 F.2d 566, 569 (2d Cir.1979). Here, as the proceedings in F.E.F. show, both SRS and the State could have gone further to bring the dispute to a head. Their failure to do so defeats collateral order jurisdiction.

Although we do not believe that Cameron is a proper case for collateral order jurisdiction, we do have some discretion to provide review. The situation here is comparable to that in State v. Saari, 152 Vt. 510, 513, 568 A.2d 344, 347 (1989), where we found no jurisdiction for a State appeal of an allegedly unlawful sentence but indicated review was available by extraordinary relief. Although the State failed to bring a proper extraordinary relief petition, we considered the case anyway, using V.R.A.P. 2 to suspend the requirements of V.R.A.P. 21, the extraordinary relief rule, "because of the importance of the issue and because no further facts are necessary in order to consider the merits." Id. at 514-15, 568 A.2d at 347. Similarly, in this case, SRS's mode of review, if any, lies in extraordinary relief. See Ley v. Dall, 150 Vt. at 386, 553 A.2d at 564. Since the identical issue is already before us in F.E.F. and no further factual development is necessary, we exercise our discretion under V.R.A.P. 2 to consider the SRS appeal in Cameron.

II.

In addressing the first merits issue, we start by emphasizing the narrowness of the discovery orders and requests...