State v. Mills, s. 96-337
| Decision Date | 02 January 1998 |
| Docket Number | Nos. 96-337,96-630,96-643,s. 96-337 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Wayne G. MILLS. STATE of Vermont v. Talmage B. JESTICE, Jr. STATE of Vermont v. Donald J. RHINEHART. STATE of Vermont v. Jeremy J. STARR. & 97-004. |
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Robert J. Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for Defendants-Appellants.
Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
Each of these four criminal cases was decided adversely to defendant by a three-justice panel convened pursuant to V.R.A.P. 33.1. Defendants now request that the full Court vacate the decisions, arguing that judicial action by less than a full complement of five justices of the Supreme Court is constitutionally deficient under Chapter II, §§ 29, 31 of the Vermont Constitution. We disagree and deny the motions to vacate.
Acting in response to the large backlogs and excessive delays that had developed in its operations, this Court in 1990 established a special summary procedure for simpler cases, primarily those applying settled law to the facts involved. Under the procedure, cases are screened and, if all members of the Court not disqualified agree, set before a panel of three justices. See V.R.A.P. 33.1(a). Cases heard by three justices must be decided by unanimous opinion. See id. 33.1(b). If the three justices are unable to agree on a disposition, the matter is reset before the full Court for disposition. See id.
Cases heard by three justices are decided by entry order, normally issued on the day after argument or on-brief consideration, or shortly thereafter. See Reporter's Notes, V.R.A.P. 33.1. Because of the prompt disposition of these cases, the summary disposition procedures have come to be known as the "rocket docket."
Each of the four cases involved in this review was heard by a three-justice court on October 22, 1997, and for each, the unanimous disposition was to affirm the trial court conviction or sentence. For each, the disposition was memorialized in an entry order issued on October 23, one day after the argument. Each of the entry orders gave a full statement of the reasons for the decision.
Appellants' main written argument is that the Vermont Constitution specifies that the Supreme Court is made up of five justices and, thus, only five justices can hear and decide a case. At oral argument, they modified their position and claimed a case could be heard and decided by fewer than five justices in case of disqualification or illness, or a vacancy in the Court, but not where all justices are available to participate. The source of their position is Chapter II, § 29 of the Vermont Constitution, which provides:
§ 29. The supreme court; composition
The Supreme Court shall consist of the Chief Justice of the State and four associate justices of the Supreme Court.
They also rely on similar language in 4 V.S.A. § 4(a) and Suitor v. Suitor, 137 Vt. 110, 111, 400 A.2d 999, 1000 (1979).
Neither the constitution nor the statutes specify a quorum for the Supreme Court. In the absence of a governing provision, the common law provides that a majority of a judicial body is a quorum. See generally H. Cunningham, The Problem of the Supreme Court Quorum, 12 Geo. Wash. L.Rev. 175, 175-76 (1943). We see no reason not to apply the common law in this case. See 1 V.S.A. § 271 (). Indeed, the Legislature has provided that whenever joint authority is given to a body of three or more, "the concurrence of a majority of such number shall be sufficient and shall be required in its exercise." 1 V.S.A. § 172.
Although three justices can, and have, exercised the authority of the Supreme Court on the four cases before us, appellants would have us rule that their actions are defective because the remaining two justices have not voted for the outcome. They argue that the Constitution requires a collective process of deliberation of all justices. There is no claim that the result could, or would, be different since a majority of the Court has stated its opinion. Nor are the justices who did not vote on the merits excluded from participation. Unless either or both of these justices were disqualified, both had to vote affirmatively to have the case referred to the three-justice panel and could ensure their right to vote on the outcome by refusing to vote for the reference.
The case of Suitor v. Suitor does not support appellants' position. In that case, the presiding judge of the superior court purported to act alone even though the governing statute provided that the court consisted of the presiding judge and the two assistant judges, "any two of whom shall be a quorum." 137 Vt. at 111, 400 A.2d at 1000. We held that the presiding judge, acting alone, "did not constitute a statutory court" and that the "purported order is without basis in law." Id. Suitor would instruct that a decision on the merits by less than a quorum of this Court is ineffective. It does not suggest that a decision by only a quorum of the Court is ineffective.
The appellants' argument would impose a constitutional strait-jacket over the decisional processes of this Court. The Constitution specifies the membership of the Court, but provides no detailed direction on how those members are to reach their decisions. As the Supreme Court of Louisiana stated in response to a similar challenge:
There is nothing ... in the [Louisiana] Constitution requiring that all of the seven members of the court shall be present and participate in the hearing and deciding of every case. All that the Constitution requires in that respect is in section 4 of Article VII, declaring that the court shall be composed of seven members, four of whom shall concur to render a judgment when the court is sitting en banc, meaning when the court is not sitting in sections.
Jackson v. United Gas Public Serv. Co., 196 La. 1, 198 So. 633, 643 (1940); see also Dauzat v. Allstate Ins. Co., 257 La. 349, 242 So.2d 539, 546 (1970) ().
In the only decision from the highest court of a state on point, the nine-member Mississippi Supreme Court upheld its power to sit in panels of five as long as the panel rendered a unanimous decision. Ryan Supply Co. v. Brett, 222 Miss. 30, 75 So.2d 721, 721-22 (1954). It stressed that five judges was a quorum, and the disagreement of any member of the quorum would automatically send the case to the full court for decision. It concluded that full-court consideration was unnecessary "since the votes of the Judges who originally considered the case, being five in number, would control the decision to be rendered by the entire group of nine." Id. 75 So.2d at 721; see also Russell v. State, 312 So.2d 422, 424 (Miss.1975) (reaffirming Ryan Supply Co.).
We recognize, as appellants argue, that this is a deliberative body and collective deliberation can in some cases determine the outcome. We stress, however, that V.R.A.P. 33.1 requires that each justice participate in each case. It recognizes, however, that in some cases that participation need not go beyond a decision that the case is relatively simple and five-justice deliberation is unnecessary to a just result.
Moreover, we are unable to find the requirements appellants seek to impose in the constitutional language. Some state constitutions, for example, specify the membership of an appellate court and go on to require that the members participate in each case. See Ill. Const. art. VI, § 5 (); Cirro Wrecking Co. v. Roppolo, 153 Ill.2d 6, 178 Ill.Dec. 750, 756-57, 605 N.E.2d 544, 550-51 (1992). Our Constitution has no such requirement.
Nor can we find in the constitutional language the distinctions appellants would draw to determine when it is valid for the Court to sit with fewer than five members. They recognize the ability of the Court to sit without a full complement for some practical considerations, for example, illness of a justice, probably because that power is widely recognized. See, e.g., Commonwealth v. Petrillo, 340 Pa. 33, 16 A.2d 50, 58 (1940). But, appellants do not recognize a like power for other practical reasons,...
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