Judge warns S 178 could shift burden, add courtwork though it may speed some dismissals
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Summary
Chief Superior Judge Tom Zoney told the Senate Judiciary committee S 178 would mix Massachusetts‑style timelines with Vermont Rule 48 interest‑of‑justice reviews, potentially shifting burdens and creating additional litigation over exceptions even as it could permit dismissals where prosecutors do not respond.
The Senate Judiciary committee heard testimony on S 178, a bill that would create a statutory mechanism for defendants to seek dismissal of criminal cases that have exceeded a statutory timeframe. Chief Superior Judge Tom Zoney, testifying to the committee, said the proposal borrows time‑limit concepts from Massachusetts Criminal Rule 36 but folds them into Vermont’s existing Rule 48 interest‑of‑justice framework rather than creating an automatic right to dismissal.
Zoney said existing court practice already tracks motions placed "under advisement," with monthly reports and a policy that motions be decided within 90 days. "The short answer to that is no," he said when asked whether a filed motion can simply be ignored. He described S 178 as permitting a defendant to file after the requisite time, requiring the state to respond in 14 days, and allowing the court to dismiss if the state fails to respond — but not making dismissal automatic as Massachusetts does.
Why it matters: Committee members pressed whether the bill would reduce the caseload backlog. Zoney cautioned that outcomes depend on how parties use the procedure. If the state does not respond to filings, dismissals could reduce the docket; if the state opposes filings, courts may spend substantial time resolving numerous dismissal motions. "It has the potential to take what is intended to move cases quicker and start adding more cases for us to have to address," he said.
Legal and procedural context: Zoney noted the bill does not clearly define what a defendant must plead initially when moving to dismiss, creating questions about where the burden to make a prima facie showing would lie. He referenced the state's Rule 48 practice and the Fitzpatrick decision and said separation‑of‑powers concerns make dismissal under the court’s authority an extraordinary remedy in the absence of prosecutorial agreement.
What happened next: Committee members said they would solicit additional perspectives, including from defense counsel, and would not mark up S 178 that day. The chair indicated members will "chew on" possible tweaks, including clarifying the initial pleading content and where the burden of proof should lie.