J.G., In re

• Decision Date: 21 May 1993
• Docket Number: No. 93-119,93-119
• Citation: 627 A.2d 362,160 Vt. 250
• Parties: In re J.G., Juvenile.
• Court: Vermont Supreme Court

Page 362

627 A.2d 362

160 Vt. 250

In re J.G., Juvenile.

No. 93-119.

Supreme Court of Vermont.

May 21, 1993.

Pamela Marsh of Nuovo & Marsh, Middlebury, for petitioner.

William Keefe, Addison County Deputy State's Atty., Middlebury, for respondent.

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

DOOLEY, Justice.

Seventeen-year-old juvenile, who admitted to the underlying offense of petty larceny and to being a delinquent, seeks permission to appeal from a decision of the family court retransferring the matter to district court, pursuant to 33 V.S.A. § 5527(c). Juvenile's request for permission to appeal is premised on State v. Lafayette, 148 Vt. 288, 292, 532 A.2d 560, 562 (1987), which allowed interlocutory review of a collateral order denying transfer of a criminal proceeding to juvenile court. The family court denied juvenile's motion for permission to appeal, stating that its transfer decision would be reviewable upon appeal, if any, from final judgment in the criminal case. We grant permission to appeal.

Before examining the specifics of this case, we address the issue of whether juveniles are entitled to interlocutory review of transfer decisions as a matter of right. In Lafayette, we stated that this Court "may have jurisdiction" over otherwise unreviewable collateral orders that conclusively determine important issues unrelated to the merits of the action. Id. at 290-91, 532 A.2d at 561; see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). After discussing whether an order waiving juvenile jurisdiction is "effectively reviewable" on appeal from a criminal conviction, we held that "when the injustice that would result if defendant were erroneously tried as an adult, and thereby denied the protections of chapter 12 of Title 33, is balanced against this Court's policy of avoiding piecemeal review, the balance clearly militates in favor of allowing appeal at this time." Lafayette, 148 Vt. at 292, 532 A.2d at 562. Thus, the narrow holding of Lafayette is that this Court has jurisdiction to review juvenile transfer decisions, and that appeals of such decisions will be allowed in situations where injustice would result if the defendant were erroneously tried as an adult.

This narrow reading was confirmed in In re Maple Tree Place Assocs., 151 Vt. 331, 332-33, 560 A.2d 382, 383 (1989), where we stated:

[W]e are concerned that the limited nature of our holding in Lafayette may have been misunderstood. While we set forth specific criteria without which a collateral order will not be reviewed by this Court, overriding these threshold criteria is our need to balance the possible loss of important rights "against this Court's policy of avoiding piecemeal review." 148 Vt. at 292, 532 A.2d at 562. Lafayette should not be read as an addendum to the Vermont Rules of Appellate Procedure, creating a virtual entitlement to review of collateral orders. Lafayette 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.... Lafayette announced a procedure that will be available when strong need is demonstrated. But it must not be seen as a commonplace alternative to normal appellate review under the rules.

In 1990, V.R.A.P. 5.1 was amended by replacing "shall" with "may" to make it clear that the court has discretion in deciding whether to allow an appeal from a collateral order. V.R.A.P. 5.1(a); see Lamb v. Bloom, 159 Vt. 633, ----, 622 A.2d 505, 506 (1993) (Murray v. White, 155 Vt. 621, 587 A.2d 975 (1991), does not grant entitlement to appeal from denial of summary judgment to party claiming qualified immunity, but merely holds that this Court has jurisdiction to take such an appeal); In re C.K., 156 Vt. 194, 196, 591 A.2d 57, 59 (1991) (even when challenged order meets all three criteria of rule, V.R.A.P. 5.1 does not entitle moving party to review of order). Further, this Court "may" dismiss the appeal at "at any time" upon its own motion or a party's motion. V.R.A.P. 5.1(c).

By holding that this Court had jurisdiction over an appeal from the transfer decision pursuant to V.R.A.P. 3 and 4, Lafayette suggests that collateral orders meeting the three-part Cohen test are appealable as a matter of right. 148 Vt. at 289, 532 A.2d at 560-61; see State v. Cleary, 150 Vt. 649, 649-50, 551 A.2d 1201, 1202 (1988) (mem.) (citing Lafayette, Court noted that litigant seeking an appeal under collateral order doctrine should file a notice of appeal because such appeals are not interlocutory). In light of our experience with Lafayette, we now hold that collateral appeals are discretionary interlocutory appeals. To the extent that Lafayette or later cases hold that collateral order appeals are nondiscretionary and granted as a matter of right, they are overruled. ¹

The suggestion in Lafayette that collateral order appeals are nondiscretionary most likely resulted from a reliance on federal case law interpreting a federal statute that gives the courts of appeal jurisdiction over appeals from "all final decisions" of the district court. See 28 U.S.C. § 1291 (1982). Federal case law appears to hold that collateral orders meeting the Cohen test are appealable "final decisions" under § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 524, 105 S.Ct. 2806, 2814, 86 L.Ed.2d 411 (1985) ("final decision" within meaning of § 1291 does not necessarily mean last order to be made in case); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170-71, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974) ( § 1291 does not limit appellate review to final judgments that terminate action). Once jurisdiction is established under § 1291 for these types of orders, appeal is granted as a matter of right. See Solimine, Revitalizing Interlocutory Appeals in the Federal Courts, 5 8 Geo.Wash.L.Rev. 1165, 1190 (1990).

Our jurisdictional scheme for appeals is different from that applicable to the federal courts. The statutes define only the outer contours of our appellate jurisdiction. See 4 V.S.A. § 2(a). The import of our law is that "a final judgment is a prerequisite to appellate jurisdiction unless the narrow circumstances authorizing an interlocutory appeal are present." Hospitality Inns v. South Burlington R.I., 149 Vt. 653, 656, 547 A.2d 1355, 1358 (1988) (emphasis added); see In re Hill, 149 Vt. 86, 88, 539 A.2d 992, 994 (1987) ("The normal mode of judicial review in Vermont is by appeal after judgment."). Unlike the federal system, we have no definitive statute that governs when a lower court action is appealable. Further, this Court has "broad authorization" to adopt rules regarding the procedure for taking appeals from orders that are not final judgments. Bloomberg v. Edlund Co., 151 Vt. 559, 560-61 n. *, 563 A.2d 995, 996 n. * (1989); see 12 V.S.A. § 2386 (Supreme Court may provide rules for taking appeals before final judgment). Thus, while federal precedents are often helpful and persuasive, they are not controlling here.

We employed the "broad authorization" provided by 12 V.S.A. § 2386 when we adopted V.R.A.P. 5.1, which clearly gives both the trial court and this Court the discretion to deny collateral order appeals, even when the three-part Cohen test is met. By doing so, we rejected the federal courts' nondiscretionary treatment of collateral order appeals. Although this action may appear to be inconsistent with some of the analysis in Lafayette, there is no inconsistency between the result of that case and Rule 5.1. While an order transferring a juvenile case to criminal court is often a critically important decision that affects statutory rights of the accused, Lafayette, 148 Vt. at 291, 532 A.2d at 562, this fact does not convert the order into a final judgment. In re R.L., 202 N.J.Super. 410, 495 A.2d 172, 174 (Ct.App.Div.), cert. denied, 102 N.J. 357, 508 A.2d 226 (1985). Many critical issues are determined through interlocutory review on a discretionary basis. Id. This one is no different. When requesting permission to appeal, the juvenile may emphasize the factors that make review appropriate under the given circumstances. If review is indeed appropriate, it is available to prevent injustice.

Based on our experience with Lafayette appeals, we believe that handling them on a discretionary basis sufficiently protects the juvenile where appropriate without forcing unwarranted delays in the prompt administration of justice. The trial court's discretion in transfer decisions is broader than in any other area. We have refused to set any predetermined limits on that discretion, reviewing decisions based solely on a hindsight determination of whether the discretion was abused. See State v. Buelow, 155 Vt. 537, 546, 587 A.2d 948, 954 (1990). Since the jurisdictional decision in Lafayette, we have not found in any case that the trial court abused its broad discretion in refusing to transfer a criminal case to juvenile court. See id. at 545, 587 A.2d at 953; State v. Barrette, 153 Vt. 476, 478, 571 A.2d 1137, 1139 (1990); State v. Lafayette, 152 Vt. 108, 113, 564 A.2d 1068, 1070 (1989); State v. Smail, 151 Vt. 340, 343, 560 A.2d 955, 957 (1989). As long as we allow such broad discretion, we strike an inappropriate balance of the competing considerations if we take all transfer appeals with no evaluation of the merits of the appeal. Similar concerns have prompted several courts to permit only discretionary review of juvenile transfer decisions. See, e.g., In re R.L., 495 A.2d at 175 (rather than final judgment, juvenile waiver order is interlocutory order that may be appealed only by leave of court); In re Joseph T., 575 A.2d 985, 987 (R.I.1990) (interests involved in juvenile transfer order are better served by allowing discretionary review of such decisions upon writ of...