Justiciability; ripeness: constitutional issue not decided below is not ripe.

 State v. M.W. (2011-229) (03-Aug-2012) (Burgess, J.)   

The Windsor County State’s Attorney filed this interlocutory collateral final order appeal seeking review on the question of whether 13 V.S.A. § 4815(g)(1) violates the Vermont Constitution’s separation-of-powers provision by divesting the trial court of the authority to order an inpatient mental health evaluation of a potentially incompetent defendant.  The Attorney General intervened on behalf of the State, arguing that the appeal was improvidently granted, and that the statute is constitutional.  We conclude that there is no justiciable claim because the necessity of an inpatient evaluation and the constitutionality of the statute were not decided below.  Therefore, we dismiss the appeal.

We do not reach the separation-of-powers question because we dismiss the appeal for lack of a justiciable controversy in this case.  An appeal of a collateral final order is appropriate if the court’s ruling: (1) conclusively determines a disputed question; (2) is separate from the merits of the case; and (3) will be unreviewable on appeal from final judgment.  V.R.A.P. 5.1(a); see In re F.E.F., 156 Vt. 503, 507, 594 A.2d 897, 900 (1991).  Here, there was no conclusive determination of the disputed question—namely, whether § 4815(g)(1) unconstitutionally precluded the court from ordering a necessary inpatient evaluation. 

Ripeness is part of justiciability and is built on the premise “that courts should not render decisions absent a genuine need to resolve a real dispute.”  Claims are ripe when there is a “sufficiently concrete case or controversy” and when the exercise of judicial power is justified by “prudential considerations.”  “The Vermont Constitution confers judicial authority only to determine actual controversies arising between adverse litigants, and issuing an advisory opinion . . . would exceed our constitutional mandate.”   The exception to the mootness doctrine for issues that are capable of repetition yet evade review does not apply to the ripeness analyis.   The issue was not once live and now moot; the mere possibility of future injury does not transform a nonjusticiable controversy into a justiciable one.

Without a conclusive determination on the issue, there is no controversy to appeal.