Hunt v. Village of Bristol

• Decision Date: 18 December 1992
• Docket Number: No. 92-056,92-056
• Citation: 159 Vt. 439,620 A.2d 1266
• Parties: Wayne E. HUNT v. VILLAGE OF BRISTOL and Village of Bristol Board of Trustees.
• Court: Vermont Supreme Court

Page 1266

620 A.2d 1266

159 Vt. 439

Wayne E. HUNT v. VILLAGE OF BRISTOL and Village of Bristol Board of Trustees.

No. 92-056.

Supreme Court of Vermont.

Dec. 18, 1992.

James F. Carroll, Powers, English & Carroll, Ltd., Middlebury, for plaintiff-appellant.

Steven F. Stitzel and Patti R. Page, Stitzel & Page, P.C., Burlington, for defendant-appellee.

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

MORSE, Justice.

In August 1991, Wayne Hunt was fired as police chief of Bristol, Vermont. He sought relief under V.R.C.P. 75 in superior court, and his complaint was dismissed on the ground that certiorari review was unavailable because no substantial constitutional issue was raised. He appeals here. We reverse.

The police chief was dismissed under 24 V.S.A. § 1932 (removal or suspension of police officer after hearing). Review of governmental action is governed by V.R.C.P. 74 and 75. Rule 74 applies when review is provided by statute. When legislation is silent on the mode of review, Rule 75 governs the appellate procedure if review is "available by law." Review is not "available by law" when the Legislature has declared that an "action of a tribunal shall be final." Mason v. Thetford School Board, 142 Vt. 495, 498-99, 457 A.2d 647, 649 (1983) ("language of finality ... precludes appeal even where it might otherwise be available").

The legislation providing for dismissal of a police officer is silent on the right to an appeal. Where the legislation does not affirmatively indicate that review is "available by law," we have held that review by this Court is nonetheless permitted by a petition for extraordinary relief. Vincent v. Vermont State Retirement Board, 148 Vt. 531, 533-34, 536 A.2d 925, 927-28 (1987) (when statutory scheme does not provide for appeal, review is available under V.R.C.P. 75); Molesworth v. University of Vermont, 147 Vt. 4, 6-7, 508 A.2d 722, 723 (1986) (where Legislature does not provide a specific means of review, administrative action is reviewable by writ of certiorari under 4 V.S.A. § 113 in superior court following the procedures of V.R.C.P. 75); City of St. Albans v. Avery, 95 Vt. 249, 262, 114 A. 31, 37 (1921) (writ of certiorari provides review of "bodies exercising judicial functions ... where no other means of review is provided").

Extraordinary writs such as mandamus, scire facias, prohibition, quo warranto and certiorari are remedies "of ancient common law origin," first recognized in Vermont statutes in 1824. St. George v. Larson, 125 Vt. 352, 352-53, 215 A.2d 511, 512 (1965) (outlining history of extraordinary writs). The superior court has original jurisdiction concurrent with this Court in matters of "certiorari, mandamus, prohibition, and quo warranto." 4 V.S.A. § 113. By rule, Vermont has "abolished" certain extraordinary writs, certiorari among them, declaring instead that review of governmental action shall be governed by Rule 74 or 75. V.R.C.P. 81(b). Habit is not easily broken, however, and we still refer to relief from government action as "in the nature of" one of the extraordinary writs. Reporter's Notes, V.R.C.P. 75. When only questions of law, as opposed to fact, are under consideration, review is "available as a matter of general law" by resort to extraordinary relief "in the nature of certiorari." Reporter's Notes, V.R.C.P. 75; Molesworth, 147 Vt. at 6, 508 A.2d at 723 ("nature of certiorari ... do[es] not contemplate de novo review").

In this case, the trial court dismissed the complaint because no "substantial constitutional issue appropriate to review in the nature of certiorari" was raised. We disagree that a constitutional issue is required for review to be available. Under V.R.C.P. 75, review in superior court by way of appellate review or certiorari is virtually synonymous. At an earlier time, certiorari was a "prerogative writ" where the Supreme Court had "discretion in withholding the remedy, even when it is obvious, that some formal error has intervened." Paine v. Town of Leicester, 22 Vt. 44, 49 (1849). The case law interpreting certiorari review over the years has blurred the distinction between the two avenues of appellate review, although some cases still hold out an ostensible distinction between them. In Molesworth, we said that review is "limited to ... addressing substantial questions of law." 147 Vt. at 7, 508 A.2d at 723 (emphasis added). All that this has come to mean, however, is the unremarkable proposition that questions of law without merit do not warrant relief on review. In re Town of Essex, 125 Vt. 170, 170-71, 212 A.2d 623, 625-26 (1965) (practice is to hear the merits of the petition for a writ of certiorari and decide the case). As stated in Royalton College, Inc. v. State Board of Education, 127 Vt. 436, 447-48, 251 A.2d 498, 506 (1969):

the scope of review under a writ of certiorari is...