State v. Dunkerley, 162-76

Decision Date05 October 1976
Docket NumberNo. 162-76,162-76
Citation365 A.2d 131,134 Vt. 523
PartiesSTATE of Vermont v. Scott J. DUNKERLEY.
CourtVermont Supreme Court

M. Jerome Diamond, Atty. Gen., Gregory A. McKenzie, Deputy Atty. Gen., Raymond L. Betts, Jr., Asst. Atty. Gen., Montpelier, and James W. Winner, Paralegal (on the brief), for plaintiff.

Robert E. West, Defender Gen., Rutland, and Charles S. Martin, App. Defender, Montpelier, for defendant.


BARNEY, Chief Justice.

In the context of a first-degree murder charge, this Court has been asked to deny participation in that trial by the Assistant Judges of the County. A motion to that end was denied below, and the issue certified here as an interlocutory appeal under V.R.A.P. 5(b). Proceedings below were not stay pending this appeal.

The State moved to dismiss in this Court. The motion raised several issues: that the question was not now ripe for review; that this appeal will not materially advance the termination of the litigation; or that it cannot be factually established at this point in the proceedings that a fair trial cannot be had.

The State's request for dismissal must be refused. It is the veiw of this Court that among the issues raised there is before us a question of law which requires determination as to the validity of the trial proceedings. That issue may be stated in this form: Is it a violation of due process to conduct a trial before a court consisting of a majority of lay judges authorized to adjudicate matters of law as well as fact?

The United States Supreme Court, in North v. Russell, -- U.S. --, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976), has answered a parallel question relating to a lay judge sitting alone, by permitting proceedings before such a lay magistrate to stand, on the basis that that particular state system provided for a right of appeal and trial de novo before a legally trained judge. Our Superior Court procedure does not provide for such a de novo trial. It is our highest court of nisi prius jurisdiction. The legal authority of any combination of three judges sitting together forming a majority to make the determinative legal ruling at trial is unquestionable. Two Assistant Judges may, therefore, combine to make any legal ruling, irrespective of the position taken by the legally trained presiding judge. So the issue squarely before this Court that was not met by the United States Supreme Court in the North case is: Is it legally permissible, as a matter of due process, to be tried a potentially lay court and no other?

This is an issue of law. It goes to the validity of the trial process. It turns on no evidentiary issue relating to the 'fairness' of a particular trial. If to proceed is a violation of due process, as a matter of law, to refuse to respond to the certification could require that the matter be retried. This is the very essence of the purpose of V.R.A.P. 5(b).

Since it is an issue of law, we cannot take into account the capabilities of the Assistant Judges sitting. We cannot put into the scale the soundness of their judgment, their fairness, their sense of justice, or the breadth of their non-legal experience. The matter must be decided, as issues of law always are, on the basis of the general applicable proposition, to govern all like trials.

Perhaps a word or two about the history of Assistant Judges in our law would be helpful. They have been a part of the county court system for about as long as Vermont has been a state. They came into being at a time in Vermont's history when legally trained men were so rare than all judges were usually lay persons. There is still no constitutional provision requiring that judges be legally trained. The Legislature has, by statute, imposed such a requirement as to District and Superior Judges and Justices of this Court. 4 V.S.A. § 602(b).

Thus, the fact is that the positions of Assistant Judges have come to be usually filled by laymen is at least partly a matter of historical accident; they are not required to be laymen. In fact, in times past, in several counties, lawyers have served as Assistant Judges. The ethical problems raised by such a situation are referred to in Cady v. Lang, 95 Vt. 287, 115 A. 140 (1921).

Thus, the question concerns itself not with the office of Assistant Judge, but the effect on a trial of the occupancy of that office by a lay person. In that context, the question so plainly stated by the dissenters in North v....

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15 cases
  • State ex rel. Collins v. Bedell
    • United States
    • West Virginia Supreme Court
    • July 12, 1995 a jail sentence violates a defendant's due process rights since justice courts are not courts of record) and State v. Dunkerley, 134 Vt. 523, 365 A.2d 131 (1976) (The Court held that conducting a criminal trial of a felony before a panel of non-lawyer judges would violate a defendant's d......
  • Lecates v. Justice of Peace Court No. 4 of State of Del.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 30, 1980
    ...will not tolerate a lay-judge system where there is no unconditional right to a trial de novo in the courts of record. State v. Dunkerly, 134 Vt. 523, 365 A.2d 131 (1976).22 As one commentator noted over fifty years ago:With no training in the law, no training in the process of judicial tho......
  • State v. Messier
    • United States
    • Vermont Supreme Court
    • July 19, 1985
    ...Defendant maintains that sentencing entails questions of law which preclude participation by lay judges under State v. Dunkerley, 134 Vt. 523, 365 A.2d 131 (1976). We recently addressed this same issue in State v. Hamlin, 146 Vt. 97, ---, 499 A.2d 45, 55 (1985). In that case we declined to ......
  • State v. Davis
    • United States
    • Montana Supreme Court
    • May 10, 2016
    ...courts from which appeal is not by trial de novo must be courts of record. Sections 3–10–101(5), –115, MCA.¶ 25 In Vermont v. Dunkerley, 134 Vt. 523, 365 A.2d 131, 132 (1976), the Vermont Supreme Court addressed part of Vermont's uncustomary legal system that permitted three judges to presi......
  • Request a trial to view additional results

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