Vermont Supreme Court Administrative Directive No. 17 v. Vermont Supreme Court

• Decision Date: 31 May 1990
• Docket Number: Nos. 90-102,90-122,s. 90-102
• Citation: 154 Vt. 392,579 A.2d 1036
• Court: Vermont Supreme Court
• Parties: . 17 and Harriet and Donald Smith, et al. v. The VERMONT SUPREME COURT, The Honorable Frederic W. Allen, The Honorable Louis P. Peck, The Honorable Ernest W. Gibson III, The Honorable John A. Dooley, The Honorable James L. Morse, in their Individual Administrative Capacities as Justices of the Vermont Supreme Court. Supreme Court of Vermont

Page 1036

579 A.2d 1036

154 Vt. 392

In re VERMONT SUPREME COURT ADMINISTRATIVE DIRECTIVE NO. 17 and Harriet and Donald Smith, et al. v. The VERMONT SUPREME COURT, The Honorable Frederic W. Allen The Honorable Louis P. Peck, The Honorable Ernest W. Gibson III, The Honorable John A. Dooley, The Honorable James L Morse, in their Individual Administrative Capacities as Justices of the Vermont Supreme Court.

Nos. 90-102, 90-122.

Supreme Court of Vermont.

May 31, 1990.

John F. Evers of Langrock Sperry Parker & Wool, Middlebury, Jerome F. O'Neill of O'Neill and Crawford, Burlington, and Deborah T. Bucknam, St. Johnsbury, for petitioners/appellants.

Jeffrey L. Amestoy, Atty. Gen., and Robert W. Gagnon and Marilyn Skoglund, Asst. Attys. Gen., Montpelier, for respondents/appellees.

Before GIBSON, DOOLEY and MORSE, JJ., and BARNEY, C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

BARNEY, Chief Justice (Ret.), Specially Assigned.

Petitioners brought a petition for extraordinary relief under V.R.A.P. 21 seeking a declaration that an administrative directive of this Court ordering the delay of most civil jury trials until after July 1, 1990 for budgetary reasons is unconstitutional. Petitioners were also plaintiffs in a superior court suit seeking substantially the same relief and have appealed the dismissal of that action. We dismiss the petition for extraordinary relief and affirm the dismissal of the superior court action.

On January 11, 1990 this Court issued Administrative Directive No. 17, entitled "Temporary Postponement of Civil Jury Trials," which stated as follows:

The resources available to the Judiciary have been drastically reduced for the remainder of fiscal year 1990. Accordingly, each superior and district court judge and clerk is hereby ordered to postpone until after July 1, 1990 any civil jury case for which the jury has not yet been drawn.

The administrative judge is hereby authorized to permit the trial of any given case where justice requires, but it is envisioned that nearly all civil jury cases will be delayed.

This directive shall become effective on January 22, 1990.

There is no dispute over the motivation for the issuance of Administrative Directive 17. Financial problems within the State of Vermont caused the Governor and Legislature to order rescissions--that is, reductions in the preexisting appropriations for government agencies. The Governor ordered a 2% reduction in appropriations shortly after the fiscal year began. In January, 1990, the House of Representatives cut the current-year budget of the Judiciary by another $127,000. In anticipation that this further cut in appropriated funds would be adopted by the Senate, as it was, the moratorium was adopted along with a number of other cost-cutting measures because the funds available were not enough to cover the anticipated costs for the judicial department's programs.

In Docket No. 90-122, litigants in thirteen superior court cases throughout Vermont brought individual actions and a class action in the Chittenden Superior Court pursuant to V.R.C.P. 65 and 75, purporting to represent all individuals with civil cases pending in the Vermont superior and district courts and whose cases were, or would be, affected by Administrative Directive 17. Plaintiffs asked the court to declare the Directive invalid and to direct the restoration of civil jury trial cases to the affected calendars. Defendants were the Supreme Court itself, the justices in "their individual administrative capacities," the Court Administrator, and each superior and district court clerk.

The evidence before the superior court was sparse. There was no testimony on the effect of the moratorium on the individual plaintiffs or on the average length of time between readiness for trial and the trial date. There was no proof that any of the plaintiffs sought, as was explicitly permitted, an exception from the order for their individual cases. An expert witness for the plaintiffs testified that the moratorium would have a significant detrimental effect on the lives of many of the plaintiffs because they will forego needed health care in order to take care of themselves and their families. Administrative Judge Stephen B. Martin testified that of the approximately 400 cases at issue, only a relatively few would be set under the exceptions clause in Administrative Directive 17. He also emphasized that after the moratorium expired on July 1, 1990, an emphasis would be placed on jury work so that he expected any delay in holding jury trials would disappear by January 1, 1991.

Upon completion of the evidence, the trial court granted defendants' motion to dismiss on a number of grounds, including that the superior court lacked authority to grant relief in the nature of mandamus as to an order of the Supreme Court. Although the court did not reach the issue of constitutionality, it concluded that the Directive did not create a blanket moratorium. The present appeal followed.

In addition to the appeal from the superior court decision, the same plaintiffs filed an original action in this Court, Docket No. 90-102, seeking extraordinary relief pursuant to V.R.A.P. 21 and a declaration that the civil jury moratorium was unconstitutional. The complaint described the circumstances of the individual plaintiffs. In two cases, the complaint alleged that a request for an exception from the moratorium had been made but not acted upon. In one case, the complaint alleged that such a request had been denied.

The defendants in this action were the Court and its members "in their individual administrative capacities." In an earlier opinion, this Court denied a motion to disqualify members of the Court from sitting on the case and dismissed the claim against the Justices of the Court as individual parties. We consolidated the appeal in No. 90-122 and the petition for extraordinary relief in No. 90-102 for hearing on May 14, 1990.

Before addressing the specific issues raised by petitioners, it is helpful to set out what this case is not about. At argument, the petitioners asserted that this Court has the inherent power to order the Legislature to appropriate money for "reasonably necessary" expenditures of the Judiciary and could have done so in this case. See Note, The Courts' Inherent Power to Compel Legislative Funding of Judicial Functions, 81 Mich.L.Rev. 1687 (1983); see also In re Union County Judicial Budget Impasse, 87 N.J. 1, 2, 432 A.2d 807, 807 (1981) (following hearing before fact-finding panel, Supreme Court directed county board to amend budget of county judiciary to implement recommendations approved by the court). While this proposition may be true, no party has sought to bring the legislative or executive branches into this controversy, and the complaints are solely a challenge to this Court's power to issue the Administrative Directive. Thus, the power of the Legislature or of the Governor to reduce the Judiciary's budget is not before us.

Similarly, there is no dispute about the emergency and temporary circumstances that brought about Administrative Directive 17. A retroactive reduction in appropriation to support the courts necessarily means that there must be an immediate reduction in expenditures in some way. On the other hand, as the administrative judge testified, the Directive under challenge is effective only until July 1st, and scheduling after that date can shortly bring the processing of civil jury trials to the point where it would have been if the Directive had not been issued. Thus, this case involves a temporary delay in the availability of civil jury trials, not either a permanent waiting period between readiness for trial and the start of trial or a denial of jury trial.

Having eliminated what is not before us, we can focus on what is before us. For this purpose, we will treat the case before us as the petition for extraordinary relief filed directly in this Court. Except to draw from its limited record, the parties have all but ignored the appeal from the superior court dismissal, which as we indicated above, was not on the merits of the case. Since the superior court appeal adds nothing to petitioners' arsenal, it is unnecessary to treat the jurisdictional and procedural issues raised therein.

At issue in this case are the scope and meaning of the two Vermont constitutional provisions that relate to the availability of civil jury trials in the State. Chapter I, Article 12 of the Vermont Constitution provides as follows:

That when any issue in fact, proper for the cognizance of a jury is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred.

Chapter II, § 38 of the Constitution provides: ¹

Trials of issues, proper for the cognizance of a Jury as established by law or by judicial rules adopted by the Supreme Court not inconsistent with law, in the Supreme Court, the Superior Court and other subordinate courts, shall be by Jury, except where parties otherwise agree; and great care ought to be taken to prevent corruption or partiality in the choice and return, or appointment of Juries.

The central substantive question before this Court is whether Administrative Directive 17 denies the right to trial by jury or fails to keep it "sacred" as required by Chapter I, Article 12 or Chapter II, § 38.

In order to reach this question, we must find that petitioners are properly before this Court in their V.R.A.P. 21 petition. Extraordinary relief is a flexible procedure that provides an avenue "for relief when other avenues are foreclosed." Crabbe v. Veve Assoc., 145 Vt. 641, 643, 497 A.2d 366, 368 (1985). Thus, the rule specifically requires that the petitioners demonstrate exhaustion of remedies in the superior court. See V.R.A.P. 21(b); Byrd v. Kehoe, 136 Vt. 204, 205, 388 A.2d 834, 835 (1978) (per curiam). Petitioners have demonstrated that the avenue of bringing this case to the superior court is...