State v. Fisher

Supreme Court of Vermont

State v. Fisher

555 A.2d 368, 150 Vt. 655, 1988 Vt. LEXIS 194

CourtSupreme Court of Vermont

DecidedOctober 18, 1988

DocketNo. 88-462

StatusPublished

This text of 555 A.2d 368 (State v. Fisher) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Fisher, 555 A.2d 368, 150 Vt. 655, 1988 Vt. LEXIS 194 (Vt. 1988).

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Opinion

Defendant has moved for a stay pending his appeal from the trial court’s denial of his request for disqualification of the Chittenden County State’s Attorney’s Office from prosecution of this case. We dismiss the appeal and, accordingly, the motion for the stay.

Defendant filed his notice of appeal as if from a final judgment, arguing that the judge’s decision not to disqualify the prosecutor’s office was a collateral order directly reviewable under the authority of State v. Lafayette, 148 Vt. 288, 532 A.2d 560 (1987). If this appeal were properly brought under the collateral order doctrine of Lafayette, jurisdiction would be vested exclusively in this Court, see 4 V.S.A. § 2(a), and as a result the district court would be without jurisdiction to proceed while we consider the appeal. A stay would not be necessary as the proceedings would be stayed automatically.

However, we made clear in Lafayette that in order to come within the narrow exception of the requirement of a final judgment under the rule set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47 (1949), an order “ ‘must conclusively determine the disputed question, resolve an im[656]*656portant issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.’ ” 148 Vt. at 291, 532 A.2d at 561 (quoting Lybrand. v. Livesay, 437 U.S. 463, 468 (1978)), and see Federal Civil Appellate Jurisdiction: An Interlocutory Restatement, 47 Law & Contemp. Probs. 13 (1984). The order on appeal does not fulfill the third requirement of the Cohen-Lafayette test, that of nonreviewability. The decision is fully reviewable on appeal here, should one be filed after final judgment.

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Defendant has moved for a stay pending his appeal from the trial court’s denial of his request for disqualification of the Chittenden County State’s Attorney’s Office from prosecution of this case. We dismiss the appeal and, accordingly, the motion for the stay.

Defendant filed his notice of appeal as if from a final judgment, arguing that the judge’s decision not to disqualify the prosecutor’s office was a collateral order directly reviewable under the authority of State v. Lafayette, 148 Vt. 288, 532 A.2d 560 (1987). If this appeal were properly brought under the collateral order doctrine of Lafayette, jurisdiction would be vested exclusively in this Court, see 4 V.S.A. § 2(a), and as a result the district court would be without jurisdiction to proceed while we consider the appeal. A stay would not be necessary as the proceedings would be stayed automatically.

However, we made clear in Lafayette that in order to come within the narrow exception of the requirement of a final judgment under the rule set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47 (1949), an order “ ‘must conclusively determine the disputed question, resolve an im[656]*656portant issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.’ ” 148 Vt. at 291, 532 A.2d at 561 (quoting Lybrand. v. Livesay, 437 U.S. 463, 468 (1978)), and see Federal Civil Appellate Jurisdiction: An Interlocutory Restatement, 47 Law & Contemp. Probs. 13 (1984). The order on appeal does not fulfill the third requirement of the Cohen-Lafayette test, that of nonreviewability. The decision is fully reviewable on appeal here, should one be filed after final judgment.

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Bluebook (online)

555 A.2d 368, 150 Vt. 655, 1988 Vt. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fisher-vt-1988.

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