Sunday, April 20, 2014

Invalid Prosecution?

State v. Cuomo, 2013 VT 101

By Andrew Delaney

Prosecutors have a lot of power. Defense attorneys do their level best to reduce that power. It’s kind of like Star Wars with statutes and legal arguments instead of stormtroopers and lightsabers. Or not.

Defendant claimed the Orleans County State’s Attorney was invalidly appointed. The trial court concluded that the appointment was valid and that even if wasn’t, the Orleans State’s Attorney had authority to prosecute under the de-facto-officer doctrine. The SCOV agrees that the de-facto-officer doctrine covers it and affirms. 

So here’s the background: Keith Flynn was elected Orleans County State’s Attorney for a four-year term ending January 31, 2011; he was reelected during that term for another four-year term, ending January 31, 2015. After Governor Shumlin was elected, he appointed State’s Attorney Flynn to head up the Department of Public Safety.

State’s Attorney Flynn resigned from his post “effective January 6, 2011 at midnight” with 25 days left in his first term. Then on January 6, 2011 he appointed Deputy State’s Attorney Alan Franklin as his successor for the remainder of his current term and the following term. Governor Shumlin, by a letter dated January 21, 2011 appointed Mr. Franklin to finish out the remainder of Mr. Flynn’s term and the following term.

Mr. Franklin began acting as State’s Attorney. On August 20, 2012, he filed an information against the defendant in this case. A month and a half later, defendant (along with several others) filed a motion to dismiss, arguing that the Governor lacked authority to appoint Mr. Franklin for the second term—the Governor’s authority, defendants argued, allowed the Governor only to fill the vacancy for the remainder of the first term. The trial court denied the motion, and defendants moved for a consolidated appeal, which the trial court also denied. Defendants then sought permission to appeal from the SCOV. The SCOV granted permission for defendant’s appeal only.

Defendant’s argument on appeal remains that the Governor lacked the authority to fill the vacancy for the 2011 term. Defendant also argues that the de-facto-officer doctrine doesn’t fix it—this is an absence of authority, not just technical noncompliance.

The SCOV disagrees, and outlines the issue with a block quote. We’ll follow suit:
Under the de facto officer doctrine, long recognized by this Court, an officer coming into possession of his office under the forms of law and assuming to act under a proper commission is a de facto officer whose acts are binding as to third persons, despite some infirmity in the qualifications of the officer.
Defendant argues that the doctrine applies to scrivener’s errors and such—not an appointment without authority such as the Geovernor made here. The SCOV responds that “[t]he doctrine is not so narrow.” In a footnote, the SCOV appears to acknowledge that the de-facto-officer doctrine wouldn’t save the Orleans State’s Attorney were he a party to the case, but that’s just a footnote.

Instead, the SCOV reasons, Mr. Franklin is occupying the office, discharging his duties in good faith, and in full view of the public, and there’s no appearance that he’s an intruder or usurper.

Once the SCOV concludes that the de-facto-officer doctrine applies, that’s the end of it. The SCOV isn’t going to get into whether the Governor had authority because it won’t consider questions of constitutionality not essential to a case’s resolution.

If you think about it, this case’s result was predetermined by its posture. Just imagine the mess that would have to be sorted out had defendant won. In a case like this, judicial economy is going to trump a clever technical noncompliance argument almost every time.

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