Office of State's Attorney Windsor County v. Office of Atty. Gen.
| Decision Date | 04 December 1979 |
| Docket Number | No. 6,W,No. 204-79,6,204-79 |
| Citation | 138 Vt. 10,409 A.2d 599 |
| Court | Vermont Supreme Court |
| Parties | OFFICE OF STATE'S ATTORNEY WINDSOR COUNTY By Michael J. Sheehan, Esq., State's Attorney v. OFFICE OF the ATTORNEY GENERAL, M. Jerome Diamond, Esq., Attorney General; the Vermont District Court, Unitindsor Circuit and the Honorable George F. Ellison. |
Richards & Lawlor, P. C., Springfield, for plaintiff.
M. Jerome Diamond, Atty. Gen., and Susan R. Harritt and Richard A. Unger, Asst. Attys. Gen., Montpelier, for defendants.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
This case raises issues as to the relative powers of the State's Attorney and the Attorney General with regard to initiating criminal prosecutions. Plaintiff, as State's Attorney for Windsor County, sought to enjoin the Attorney General from bringing a prosecution when the State's Attorney had already determined, in the exercise of his discretion, not to prosecute. The trial court denied plaintiff's claim, holding that he had failed to show that if the injunction was not granted a substantial right would be materially impaired. It is from the denial of this request for injunctive relief that plaintiff appeals. We affirm.
During the evening of December 7, 1978, a Vermont State Police trooper observed the erratic motor vehicle operation by a person later identified as John P. Morrissey. The trooper took the driver into custody and processed him for suspected driving while intoxicated. As the alleged occurred in Windsor County, the trooper called the State's Attorney for that county and informed him of the incident. Based on the information related to him by the trooper, the State's Attorney believed that there was probable cause for a charge of driving while intoxicated.
For several days after the call from the trooper, the State's Attorney evaluated the case and conferred with several law enforcement officers, attorneys and others. On January 4, 1979, after substantial review of the case, the State's Attorney received a copy of the police report of the incident and indicated his decision not to prosecute by writing "no action" on the report.
On January 31, 1979, the Attorney General met with the arresting trooper, other members of the Vermont State Police and a member of the Governor's office to discuss the case. Subsequent to the meeting, the Attorney General spoke with the State's Attorney and asked the latter to reconsider his decision. Again, after reflection, the State's Attorney chose not to prosecute.
As a result of the State's Attorney's inaction, the Attorney General instituted criminal proceedings against the operator of the motor vehicle by filing an information in the District Court, Unit No. 6, Windsor Circuit, charging him with driving while intoxicated in violation of 23 V.S.A. § 1201 and with refusal to submit to a breath test in violation of 23 V.S.A. § 1205. The district court found that there was probable cause, but before further action was taken the State's Attorney commenced the present action seeking to enjoin the Attorney General.
In this appeal, as in the court below, the State's Attorney argues that once he exercised his authority on behalf of the State and decided not to prosecute he had committed the State to a course of action and his decision could not be overturned except by an officer with superior authority to act on behalf of the State. In particular, he contends that since the Attorney General does not have such superior authority that office cannot overturn the State's Attorney's decision.
The State's Attorney derives his powers from 24 V.S.A. § 361(a), which provides:
A state's attorney shall prosecute for offenses committed within his county, and all matters and causes cognizable by the supreme, superior and district courts in behalf of the state; file informations and prepare bills of indictment, deliver executions in favor of the state to an officer for collection immediately after final judgment, taking duplicate receipts therefor one of which shall be sent to the finance director, and take measures to collect fines and other demands or sums of money due to the state or county.
Although the statutory grant clearly authorizes the State's Attorney to act on behalf of the State it does not, explicitly or impliedly, make the State's Attorney the exclusive arm of the state government to act with regard to initiating criminal prosecutions. Indeed, the legislature has often exercised its power to provide for the commencement of prosecutions by officers other than State's Attorneys. See e. g., In re Dusablon, 126 Vt. 362, 364, 230 A.2d 797, 799 (1967); In re Snell, 58 Vt. 207, 211, 1 A. 566, 569 (1885). Of particular concern here is 3 V.S.A. § 152, which authorizes the Attorney General to represent the State in both civil and criminal matters and provides that "(t)he attorney general shall also have the same authority throughout the state as a state's attorney." In addition, the Attorney General is granted general supervisory powers over criminal prosecutions and advisory powers with respect to State's Attorneys in matters relating to that office. 3 V.S.A. § 153(a). See also V.R.Cr.P. 6(a), and Reporter's Notes, which empowers the Attorney General to have a grand jury summoned in the unusual situations where a State's Attorney declines to act. To say the least the two offices share equal authority to initiate criminal prosecutions.
The Office of the State's Attorney, as with the local prosecutorial authority in most states, is granted broad discretion in deciding whether or not to initiate a criminal prosecution. Polidor v. Mahady, 130 Vt. 173, 175, 287 A.2d 841, 843 (1972). A decision by the State's Attorney not to prosecute is well within its authority, and such a decision is entitled to great deference. Gould v. Parker, 114...
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