In re Judicial Review of C.H.

Gibson, J. C.H. seeks the permission of this Court to take an interlocutory appeal from an adverse pretrial ruling by the Brandon District Court on the following question of law: Is the Commissioner of [Mental Health] required to present evidence supporting his lack of resources defense for failure to provide community services for C.H., and is C.H. [311] entitled to discovery of and cross-examination on such evidence? Because of the distinct possibility that a rigid adherence to the final judgment rule will result in substantial injury to C.H. that could not be repaired on appeal from a final judgment, the motion for permission to take an interlocutory appeal is granted. C.H. is a resident of the Brandon Training School who is on conditional discharge status and living at a convalescent center in Morrisville. A judicial review proceeding (18 V.S.A. § 8834) was begun in 1980. In August of 1988, the Commissioner of Mental Health and C.H’s counsel entered into a stipulation to settle that proceeding. The Commissioner conceded that C.H.’s placement was inappropriate and that he was not receiving habilitation and treatment appropriate to his needs. The Commissioner agreed to “make all efforts within his power” to find an appropriate community placement for C.H. by October 1, 1988. The settlement provided for the Commissioner to report on progress to the court, and for the judicial review proceedings to be reopened if a satisfactory placement was not achieved. The Commissioner reported to the court that funds were not available for C.H.’s placement, and that there were other individuals who would take priority before C.H. In the reopened judicial review proceeding, C.H. notified the Commissioner that he intended to subpoena witnesses to testify as to the Commissioner’s placement efforts, including the availability of funds, the allocation of available funds, and the Commissioner’s efforts to obtain additional funds. The district court granted the Commissioner’s motion in limine to limit evidence to the issues identified in the judicial review statute, 18 V.S.A. § 8834(e), and to exclude evidence on the Department’s lack of resources, citing In re C.B., 147 Vt. 378, 518 A.2d 366 (1986), and In re A.C., 144 Vt. 37, 470 A.2d 1191 (1984). In C.B., the Court held that the Commissioner could assert a lack-of-resources defense. 147 Vt. at 384, 518 A.2d at 371. In the case at bar, C.H. argues that the corollary to that holding is that the Commissioner must also present evidence on that defense, and that it should be subject to discovery. After granting the Commissioner’s motion, the trial court denied C.H.’s motion to take an interlocutory appeal, stating that it failed to meet the [312] V.R.A.P. 5 criteria and citing State v. Lafayette, 148 Vt. 288, 532 A.2d 560 (1987). The parties agree that the question which petitioner seeks to have resolved involves a controlling question of law upon which there is a substantial ground for a difference of opinion, but disagree about whether the resolution of the question would in any way advance the termination of the litigation. See V.R.A.P. 5(b). The inability to present evidence on the issue of whether the Commissioner lacks the resources to place C.H. in the least restrictive appropriate placement precludes C.H. from obtaining the evidence necessary to overcome the Commissioner’s contention that he lacks the resources to meet those needs. The effect of the grant of the motion in limine is to force C.H. to a hearing from which an appeal will most certainly be taken, raising the identical issue that C.H. now seeks to bring before us. We cannot agree with the dissent that C.H. will not suffer prejudice by letting the case go to final judgment and then appealing it. A judicial review of the appropriateness of C.H.’s case, treatment, and rehabilitation has been pending since 1980. Should it be ultimately determined that the resources were available, C.H. will have forever lost the care and treatment to which he may be entitled for the period of time caused by our delay in deciding the issue presented. The consequences of the delay cannot be effectively cured by reversal months or years later. Where substantial injury which could not be repaired on appeal from a final judgment may result from rigid adherence to the final judgment rule, the rule ought to be relaxed and interlocutory review granted. See 16 C. Wright, A. Miller, E. Cooper and E. Gressman, Federal Practice and Procedure: Jurisdiction § 3920, at 6 (1977) (“proliferation of opportunities for review prior to completely final disposition in the [federal] district court has occurred because of the substantial injuries that could result from rigid adherence to a strict final judgment rule”); compare Castle v. Sherburne Corp., 141 Vt. 157, 164-65, 446 A.2d 350, 353-54 (1982) (because of unusual delays in the discovery process and in order to “best serve the interest of judicial economy,” the Court found good cause to suspend the requirments of V.R.A.P. 5(b) pursuant to V.R.A.P. 2 and consider the interlocutory appeal). The dissent’s concern for the added workload inposed upon this Court is not persuasive. The issue will ultimately have to be [313] decided by this Court, and there will be no resulting increased caseload impact. The motion of C.H. for permission to file an interlocutory appeal is granted.