Opinion
No. 9-71
Opinion Filed February 4, 1971
1. Prohibition — Issuance of Writ — Abuse of Power
The unlawful assumption of judicial power is the basis for the writ of prohibition.
2. Prohibition — Issuance of Writ — Alternate Remedy
Where the need to interrupt the course of the proceedings by invocation of the extraordinary remedy of prohibition did not appear on the face of the petition and since redress was possible and proper in the orderly course of the judicial proceedings, the writ would not be appropriate.
Petition for writ of prohibition. Holden, C.J., presiding. Petition denied.
Bernard J. Woodmansee, Pro se. James M. Jeffords, Attorney General, and William T. Keefe, Assistant Attorney General, for Defendant.
Present: Holden, C.J., Barney, Smith and Keyser, JJ.
Accompanying a petition for writ of prohibition is a request for the assignment of counsel at state expense. The petition seeks to prohibit the prosecution of a criminal action against the petitioner. The grounds are that the indictment is invalid, because of the presence of an unauthorized person in the grand jury room during the presentation of evidence. The person referred to is the assistant attorney general, present as prosecuting officer under 3 V.S.A. § 153(c). Counsel has been furnished the petitioner in connection with the criminal action.
This kind of attack on the proceedings can appropriately be disposed of by appellate review of a timely challenge made in connection with trial of the case. The allegation does not involve the unlawful assumption of judicial power, which is the basis for the writ. Gould v. Parker, 114 Vt. 186, 188, 42 A.2d 416 (1945). The need to interrupt the course of the proceedings by invocation of an extraordinary remedy does not appear on the face of the petition, since redress is possible and proper in the orderly course of the judicial proceedings. In re Raymo, 121 Vt. 246, 248, 154 A.2d 487 (1959). This being so, an order for assignment of counsel would be inappropriate.
Petition denied.