Hill, In re

• Decision Date: 18 December 1987
• Docket Number: No. 87-581,87-581
• Citation: 539 A.2d 992,149 Vt. 86
• Parties: In re Justice William C. HILL, et al.
• Court: Vermont Supreme Court

Page 992

539 A.2d 992

149 Vt. 86

In re Justice William C. HILL, et al.

No. 87-581.

Supreme Court of Vermont.

Dec. 18, 1987.

Douglas Richards, Springfield, and William J. Donahue, White River Junction, petitioners.

Before DOOLEY and MAHADY, JJ., BARNEY, C.J. (Ret.), KEYSER, J. (Ret.) and SPRINGER, District Judge (Ret.), Specially Assigned.

PER CURIAM.

Special counsel to the Judicial Conduct Board petition the Court for extraordinary relief under V.R.A.P. 21, requesting relief in the nature of mandamus to compel the testimony of Attorney General Jeffrey Amestoy and Assistant Attorney General David Suntag at the hearing on the formal complaint in this matter. The petition is dismissed.

It is an essential condition to the granting of extraordinary relief by this Court that petitioner set forth "the reasons why there is no adequate remedy by appeal under these rules or by appeal or proceedings for extraordinary relief" in superior court. V.R.A.P. 21(b). This the instant petition fails to do. Petitioners state that in the course of their discovery they have learned that the two prospective witnesses intend to cite the attorney general's work-product privilege in declining to answer certain questions about a November, 1985 investigation of Assistant Judge Jane L. Wheel. But they do not state why this testimonial issue could not be dealt with by the Judicial Conduct Board when and if it arises in the normal course of the proceeding on the merits. Rule 8(7) of the Supreme Court Rules for Disciplinary Control of Judges states as follows:

At the time and place set for the hearing, the panel shall proceed with the hearing which shall conform to the rules of procedure and evidence governing the trial of civil actions ....

Following an evidentiary objection and a Board ruling thereon, any error asserted can be appealed to this Court under Disciplinary Rule 11.

In the event that petitioners believe that they have grounds for earlier relief as a matter of pretrial discovery, Rule 8(4) of the same Rules states that "[d]iscovery shall be permitted as provided for in the Rules of Civil Procedure." Without expressing any views on the merits of such a motion, we note that petitioners are free to move before the Board under V.R.C.P. 37 to obtain the relief that is the essence of their petition here. The Board's action on such motion would also be subject to Rule 11 review. See McCartney v. Commission on Judicial Qualifications, 12 Cal.3d 512, 520, 526 P.2d 268, 273, 116 Cal.Rptr. 260, 265 (1974) ("As matters of discovery are generally within the sound discretion of the initial trier of fact ... we consider that the determination as to whether a discovery order shall issue is within the sound discretion of the Commission."). As the West Virginia Supreme Court said of the same kind of question:

"It is the obligation of the Judicial Review Board to supervise the extent of discovery in the same manner that a trial court supervises discovery under the West Virginia Rules of Civil Procedure; this Court will not assume original jurisdiction of discovery matters."

In re Markle, 328 S.E.2d 157, 162 (W.Va.1984) (quoting State ex rel. McGraw v. West Virginia Judicial Review Board, 271 S.E.2d 344, 345 (W.Va.1980)). And see In re Bates, 555 S.W.2d 420, 429-30 (Tex.1977).

Consequently, since "appeal under these rules" is available, extraordinary relief under V.R.A.P. 21 is not.

In any event, the essence of this petition is not the conduct of these witnesses during pretrial discovery, but rather their likely refusal to answer questions at the merits hearing. That hearing has not yet been convened, and it appears quite...