State v. Hunt , 150 Vt. 483 ( 1988 )

Valente, Supr. J.,

Specially Assigned, dissenting. Under the circumstances of this case, the Supreme Court acted without jurisdiction when it ordered a change of venue from Chittenden to Lamoille County. As a result the Lamoille Superior Court lacked the power to hear the matter of State v. Hunt. For this reason, I respectfully dissent.

In considering the defendant’s first claim of error, that the Vermont Supreme Court acted without jurisdiction, the majority opinion frames the question as being “whether the supervisory authority of the Supreme Court encompasses directing a change of venue to prevent a failure of justice.” This is not the issue. The question presented is whether the Supreme Court, under the auspices of its superintending powers, may, on its own motion, assume jurisdiction over a matter not pending before it without providing notice and an opportunity to be heard to the litigants. Before addressing the issue of the Supreme Court’s power to change venue in this matter, it must first be determined whether the Vermont Supreme Court had the power to even consider the case of State v. Hunt, Chittenden Superior Court Docket No. S-1-83CnCr.

I agree with the majority that the Supreme Court has superintending powers. What I cannot agree with is the exercise of these powers under the circumstances presented in this case. The fact that the Supreme Court has superintending control over inferior courts does not by itself mean that they have original jurisdiction over matters pending in those courts. The doors of supervisory jurisdiction open only when certain conditions are met. The law annotations and cases on the subject fail to reveal a single case where a higher tribunal exercised its supervisory powers on its own motion. See Annotation, Superintending Control Over Inferior Tribunals, 112 A.L.R. 1351 (1938); Annotation, Superintending Control Over Inferior Tribunals, 20 L.R.A. (N.S.) 942 (1909); Annotation, Superintending Control and Supervisory Jurisdiction of the Superior Over the Inferior or Subordinate Tribunal, 51 L.R.A. 33 (1901). In each instance, at least one of the parties to the controversy in question made application to the court. Furthermore, of the many cases reviewed, there is not a single instance where the litigants were not afforded their due process rights of notice and an opportunity to be heard.

I, in dissent, believe that the Vermont Supreme Court did not have the power to consider the case and, therefore, acted without jurisdiction when it ordered a change of venue from Chittenden to Lamoille County. Since an order of a court without jurisdiction is void as lacking any basis in law, Soucy v. Soucy Motors, Inc., 143 Vt. 615, 620, 471 A.2d 224, 227 (1983), the order of the Vermont Supreme Court changing venue was void. Thus, the Lamoille Superior Court never properly obtained jurisdiction over the matter of State v. Hunt.

The majority opinion holds that the Supreme Court’s failure to afford the defendant due process when it ordered a change of venue may have been a violation of his constitutional rights, but that it was harmless error. Since the error was not in changing venue, but rather was in exercising jurisdiction in the first instance, the doctrine of harmless error does not apply. See Soucy, 143 Vt. at 620, 471 A.2d at 227. Therefore, I would hold that because the Lamoille Superior Court never properly obtained jurisdiction, the conviction of the defendant is void.

For the reasons stated herein, I would reverse and remand the case for trial before the Chittenden Superior Court.